Justice and Security Bill [HL]
Lord Lloyd of Berwick Excerpts(12 years, 4 months ago)
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Lord Dubs
My Lords, let us suppose that we have the first case heard or not heard in public under these new procedures. There are bound to be doubts, particularly if it is a case that has achieved a certain amount of publicity and notoriety, about the reliability and integrity of a verdict that has been entered against a citizen after the court has heard the evidence against him or her in secret. It is something to do with the concept, in a phrase that I have heard, of the secret whispers that the judge will have heard. I am not for a moment suggesting that the judge would not behave with total reliability and integrity, but there is also the question of the public perception of how that has happened.
There has to be a concern that the public may perceive that a single judge might be thought of as being one-sided if he repeatedly hears the state’s evidence in secret and finds in its favour. All that we shall know is that the judge has heard a lot more than the rest of the world is able to discern. Is it possible to develop any safeguards against what would be a serious perception about how the judges have operated? I repeat that I am not in any way suggesting that the judge would not behave with integrity, but he has to be seen to do so by the public.
This probing amendment suggests that there is one way of lessening a critical perception on the part of the public. That would be to appoint judicial commissioners. They would be able to sit with the judge. It would not be the judge on his own, but there would be four judicial commissioners. As the amendment makes clear, these judicial commissioners would be security-cleared county court judges or retired members of the upper judiciary; they would be totally independent of the security services or the Armed Forces; and, wherever possible, they would not have sat on CMPs before. All I am talking about here is a very simple safeguard that would not affect the principle of what the Government are about.
By putting this amendment forward, I am in no way accepting the basic principle of CMPs, but if one tries to make something one does not like less bad, one is not necessarily accepting the principle of the thing—just in case there is any misunderstanding. Having said that, to make this work less badly than the Bill currently proposes, I am simply suggesting that it might be helpful to have independent commissioners sitting alongside the judge. I beg to move.
Lord Lloyd of Berwick
I have not had much time to consider this amendment but, on the face of it, it seems attractive. Of course, judges are quite used to sitting with assessors on questions of fact. Certainly that is true in patent cases at all levels and, if I remember correctly, the Restrictive Practices Court used to sit with lay assessors. It is true that in all those cases the assessor would be an expert rather than a judge, so he would not be able to overrule the judge on a question of fact. But that was not always so in other cases; for example, the president of an employment tribunal could always be overruled—and was sometimes overruled —by the two other members of the tribunal on a pure question of fact. Therefore, the idea of the judge in these cases sitting with other judges is not altogether startling.
However, the reason I support the amendment is rather different from the one given by the noble Lord, Lord Dubs. Being a judge can be a very anxious business. Of course, in the most serious criminal cases findings of fact are made by the jury, so the problem does not arise, but there are very serious civil cases where the judge has to make a finding of fact as to which side he believes, and that necessarily involves a finding that the other side is lying. I sat in many such cases and I often felt the need for someone sitting beside me who could either confirm or overrule my view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new closed material procedure, and I support the amendment for that reason.
I have doubts about subsection (3). I would have thought that two assessors rather than four would be sufficient for the noble Lord’s purpose. It would certainly have been sufficient for my purpose when I was sitting as a judge. I hope that the Minister will give a fair wind to this amendment, which I support.
Privacy Injunctions
Lord Lloyd of Berwick Excerpts(13 years, 6 months ago)
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Baroness Garden of Frognal
May I remind noble Lords that interventions should be brief in this session?
Lord Lloyd of Berwick
My Lords, I, too, greatly welcome the Statement and the report on which it is based. In recent years, one problem has been that a belief has got about that judges have a wide discretion on whether to grant a super-injunction. The report makes it absolutely clear, in paragraph 1.33, as recent cases had already made it clear, that there is no such discretion. The principle of open justice prevails unless it is absolutely and strictly necessary to depart from that principle in order to do justice in a particular case. That has long been the position and it is very good that it should have been reasserted in this Statement and report. They are obliged to act in accordance with the law as stated; they have no discretion.
Lord Wallace of Tankerness
The noble and learned Lord is right that they must apply the law as it is. It is important, as the report indicates, that openness is a cornerstone of our democracy and with our judicial proceedings and system. If that is departed from, it can be only in the most exceptional circumstances. The report by the Master of the Rolls and his committee also raises some issues of how that commitment to openness might well be enhanced. Clearly, these matters will, in part, form the discussion of the Joint Committee that is to be set up.
Fixed-term Parliaments Bill
Lord Lloyd of Berwick Excerpts(13 years, 6 months ago)
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The Lord Speaker (Baroness Hayman)
I have to inform the House that if Amendment 1 is agreed to, I cannot call Amendment 2 by reason of pre-emption.
Lord Lloyd of Berwick
My Lords, I support four years rather than five years for the reasons which I spelt out in Committee and to which I had intended to return when we reached Amendment 3, but maybe I should address that a little earlier in view of certain observations made by the noble and learned Lord, Lord Falconer, with which I agree.
I put my name to Amendment 3 last week because it followed very largely the amendment which was debated at length in Committee. I was therefore surprised to receive an e-mail over the weekend informing me that the noble and learned Lord was seeking to withdraw Amendment 3 and to substitute Amendments 1 and 2, which we now have, and asking me whether I would support them instead. I say at once that I cannot support Amendment 1.
At Second Reading, the noble and learned Lord accepted that it is open to any Government at any stage to indicate the date of the next election. That can be done within existing constitutional arrangements, as I believe everybody accepts. It did not require an Act of Parliament to establish May 2015 as the date for the next general election, but that is the course that the Government have chosen to take. There is nothing as such that is wrong with that course; it is the date that they have chosen and have put in the Bill.
If, therefore, May 2015 was to be challenged by the Opposition, surely it should have been challenged in Committee and not left to the 59th minute of the 11th hour before Report. Far from challenging that date, the amendment in Committee built on Clause 1(2). It assumed May 2015 and then substituted in Clause 1(3) “fourth” for “fifth”, and that is the amendment which I supported and still support.
It is true that, in response to the noble and learned Lord, Lord Wallace of Tankerness, on 21 March at col. 508, the noble and learned Lord, Lord Falconer, said that it had always been the Opposition’s intention to challenge the date in Clause 1(2), but that was not what they did. It is true also that at the end of the debate in Committee, it was argued that if four years was to be the norm for future Governments, it should be the norm for this Government. I do not agree. The Select Committee pointed out in paragraph 17 of its report the crucial,
“distinction between ‘the immediate concern of the Government’”—
this Government—
“‘that it should continue for five years’ and ‘the long-term issue’”,
of what should be the norm for future Governments. Those are distinct issues and it is the long-term issue to which all the evidence given in the Select Committee was directed.
It is the same as the distinction that was drawn very clearly by the noble Lord, Lord Cormack. He accepted May 2015 as the date for this Government because that is the date that any Government could have fixed. He thought that it was unnecessary to include it in an Act of Parliament, but there it is. Nevertheless, he favoured four years thereafter.
Lord Falconer of Thoroton
Is it not right that the same restrictions apply to this Government in this Parliament up to 2015 as would apply after 2015? If the same restrictions on having a general election apply in this Parliament, why is five years okay for this Parliament but not the next?
Lord Lloyd of Berwick
I am grateful for the noble and learned Lord's intervention, but he is ignoring the crucial distinction between the two issues. One is the issue as to what this Government are going to do. He accepts as we all accept that this Government can choose 2015 if they want. The issue that we ought to be discussing is not for this Government but for future Governments. It is entirely consistent, if I may say so, for us to accept May 2015 for this Government yet to say that the norm hereafter should be only four years.
Baroness Jay of Paddington
I wonder if I could draw the noble and learned Lord’s attention to the conclusion of the Select Committee report. He is right that in paragraph 17 of our report we distinguished between the long and the short term. That was in the context of the broader discussion of the relevance of fixed-term Parliaments. But when we came to draw up our conclusions, we said that,
“the majority of the Committee consider that a four year term should be adopted for any fixed-term parliamentary arrangement at Westminster”.
We went on to write to the Minister, Mr Mark Harper, to say that our first conclusion stated that:
“We acknowledge the political imperative behind the coalition Government's wish to state in advance its intent to govern for the full five year term, but this could have been achieved under the current constitutional conventions”.
The noble and learned Lord has already drawn attention to that point. We did not get a response from the Government on it and I understand that there has been no particular response forthcoming. But I emphasise that the conclusion of the committee was that a four-year term was preferable.
Lord Lloyd of Berwick
I certainly had not read the report, which I read carefully, as having drawn the distinction that I am seeking to draw between what this Government are going to do now and what future Governments should do. I had certainly not understood the report as suggesting that the committee would support four years for this Government. Thus, I am setting aside what we all accept—that any Government can choose when they wish to go to the electorate. That is all I have to say on Amendment 1. If it is put to the vote—and it appears that it will be—I shall vote against it.
Since the noble and learned Lord has gone on to develop the whole argument in relation to Amendments 1 and 3, perhaps it would be convenient for the House for me to develop my reasons for saying why I agree with him that for subsequent Parliaments the norm should be four years rather than five. That was, as he said, the clear conclusion, which has been confirmed, of the Select Committee. The reason it gave was an obvious one: that five years,
“would be inconsistent with the Government’s stated aim of making the legislature more accountable”.
With that, I wholly agree. Indeed, it is obvious.
It is not surprising that the Select Committee reached that view, since it was the unanimous view of all the experts who gave evidence before the committee, including such acknowledged experts as Professor Dawn Oliver and Professor Vernon Bogdanor. Exactly the same was true of all the experts who gave evidence in the Political and Constitutional Reform Committee of the House of Commons, including Professor Robert Hazell and Professor Blackburn. As has been pointed out, Professor Blackburn is particularly important because he has made a specific study of this issue.
If some of this evidence had been one way and some the other, or indeed if it had been subjected to any sustained challenge when it was given, one could understand the Government sticking with their five years. However, the evidence was all one way and was virtually unchallenged. That evidence simply cannot be brushed aside or disregarded, otherwise there is really no point in having Select Committees, or them listening to evidence, because the witnesses would all be wasting their time. I cannot help thinking that if the Government had been aware of the expert evidence that was subsequently given, both in the House of Commons and here, they would not have chosen five years in the first place. Indeed, the point was almost conceded—as your Lordships may remember—by the Minister in charge of the Bill. When he was asked by the noble Lord, Lord Powell, in the course of his oral evidence, he said:
“If we had been starting with a clean sheet of paper, we might have reached a different conclusion, but we started from our existing position where the length of a Parliament is up to five years”.
I simply cannot understand the logic of that reasoning. The question is what the norm is, not how it relates to the existing maximum.
Alongside all that weight of evidence, many noble Lords also spoke at Second Reading in support: the noble Lords, Lord Hennessy, Lord Grocott, Lord Norton and Lord Morgan, and the noble Baroness, Lady Taylor, were all in favour of four years. To that list we must now add the noble and gallant Lord, Lord Stirrup—I do not know whether he is in his place—who made a most impressive speech at Committee in favour of four years; as well as my noble friend Lord Martin, and of course the noble Lord, Lord Cormack, himself. All these noble Lords were well aware of the only argument that I know of in favour of five years, which is roughly as follows: it takes an incoming Government a year to get going and the last year is spent in preparing for the election, which leaves only three years of a five-year Government for implementing policy. If there is anything in that argument at all—and I suggest there is nothing—it is surely outweighed by the need to make Parliament more, rather than less, accountable to the electorate, The electorate should be able to get rid of Governments who are tired and unpopular, for whatever reason, after four years rather than five. That is why, while I will support the Government on Amendment 1, I hope that they will accept Amendment 3.
Lord Goldsmith
Noble Lords will notice from this that over many years, both in this House and at the Bar before, my noble and learned friend and I have made quite a good double act. I intended to come to that very point shortly but I do not blame him for trying to get in first. As an advocate, it is important always to make a point that you think is a good one before the other advocate does so.
On the point about pre-legislative scrutiny, it is not only a question of having an opportunity to scrutinise in this House; the committee asked the Minister responsible, “What do the people think about this? Have you asked the people what they think not only about the principle but also the term?”. As noble Lords will see in the evidence, that has never been done; there has been no attempt to consult on that kind of question. The Minister drew attention to two newspaper polls and a survey by the Scottish Youth Parliament, which were no doubt very worthy, but, as far as I am aware, they were not on the question of term but simply on the question of fixed-term Parliaments.
So the Government had nothing to support their view other—and we come now to the evidence to which my noble and learned friend Lord Falconer has drawn attention—than a political decision, a political compromise, that this Parliament was going to last for five years. We all agree in this House that that could have been done by a statement by the Government that they were going to do that and sticking to their guns. It did not need a Fixed-term Parliament Bill at all.
That brings me to the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should allow the Government to have five years this time round and four years thereafter. With respect, that makes no sense to me at all. The recommendation in the report from the Select Committee on the Constitution was not that it should be five years this time and four years thereafter. It was very clear in saying at paragraph 62 that,
“the majority of the Committee consider that a four-year term should be adopted for any fixed-term Parliamentary arrangement”.
When I put my name to this, I did not for a moment think that the report was saying that we should let the Government have five years this time and four years thereafter. They could have achieved that if they had done what the committee wanted, which was to spend the time during this Parliament to consult properly, reach a view, legislate for hereafter but not to rush this through in this way. So I have no hesitation at all in rejecting the shabby compromise that ended up with a five-year term in the discussions to which my noble and learned friend Lord Falconer has referred, and I would reject any compromise on four years. If it is to be four years for a fixed-term, it should be four years now and hereafter.
Lord Lloyd of Berwick
The noble and learned Lord will not have overlooked paragraph 17 of the report, which explains the important distinction between the Government’s immediate concern that they should continue for five years and the long-term issue of the fixed-term Parliament.
Lord Goldsmith
That is the point. The Government could have said that they had decided that they wanted the term to last for five years, that they would do that by making a commitment now for it to last for five years, unless there are unforeseen circumstances, and that they would legislate for future fixed-term Parliaments of a different level. It was not at all a question of the committee recognising that five years, as a legislative fixed-term as opposed to as a result of the exercise of prerogative, was right for this Parliament.
Fixed-term Parliaments Bill
Lord Lloyd of Berwick Excerpts(13 years, 8 months ago)
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Lord Lloyd of Berwick
I will make a brief speech since I have put my name to the amendment. In the course of his reply at Second Reading, the noble and learned Lord, Lord Wallace of Tankerness, described the question now before the Committee as “the key issue”. He went to on to say that,
“there is no absolutely right or wrong answer in that regard—it is a judgment”.—[Official Report, 1/3/11; col. 1044.]
That point has been made by many noble Lords in the course of the debate. Unfortunately, to describe something as a question of judgment does not necessarily make the answer any easier but it does, I suggest, point the way to the right starting place. In this case, that must be to look at what other sound judges have said on the subject, especially those who have made a study of our constitution. That is surely a better approach than simply, for example, counting up the number of countries worldwide which have chosen five years rather than four, or four years rather than five.
I wish to start with two of the witnesses who gave evidence before the Select Committee, Professor Dawn Oliver and Professor Bogdanor. It happens that I know them both; they are both pre-eminent in the field of constitutional law and practice and they both say that they would choose four years rather than five. So did Professor Bradley—and I hope that the Committee will forgive me for simply mentioning their names, without quoting from them—along with Professor Padgett, Dr Milner and Dr Fox. None of those witnesses who gave evidence expressed a view in favour of five years. In the other place, Professor Robert Hazell preferred four years, as did Professor Blackburn, whose evidence is important because he is the man who has made a particular study of this very issue. So the professional evidence is really unanimous; it is certainly all one way. In the Constitution Committee, the noble Lord, Lord Renton, tested the witnesses giving evidence, but it is fair to say that they did not hedge in any way, or flinch from what they had said. So it is not surprising that the Constitution Committee came down as strongly as it did in favour of four years. In contrast, the Government’s reply to the committee’s report, in paragraphs 12 to 15, seems feeble in the extreme.
If academic evidence was all one way, so also with two or three notable exceptions were the views expressed at Second Reading in this House. I have in mind the noble Lord, Lord Anderson—again I shall simply list the names—and the noble Lords, Lord Hennessy, Lord Grocott, Lord Norton and Lord Morgan, and the noble Baroness. Lady Taylor. I would assume that the noble Lord, Lord Plant, was also of that view, having regards to the conclusions of the Plant commission, although he did not in fact mention this particular point in the course of his speech.
Of the notable exceptions, I regret very much not being able to agree with the noble Lord, Lord Armstrong, or the noble Lord, Lord Marks, who favoured five years rather than four because they thought that four years would not allow long enough for sensible policy-making and parliamentary debate. I accept that during the fourth year of a four-year Parliament the coming general election would begin to loom large but, even so, four years is surely long enough for the electorate to judge the Government’s performance to date. That is what in a democracy matters most and it is what Professor Oliver meant—I think it was her—when she referred to the democratic deficit if we chose five years rather than four. That is clearly what Professor Bogdanor meant when he said that five years would make Parliament less accountable to the public. In addition to those theoretical arguments from eminent experts, there is the practical argument that four years fits in better with the devolved institutions.
So what are the Government’s arguments in favour of five years? They are not altogether apparent. I looked carefully at what Mr Harper, the Minister in charge of the Bill, had to say on the subject when he was pressed by the noble Lord, Lord Powell of Bayswater. He said:
“If we had been starting with a clean sheet of paper, we might have reached a different conclusion, but we started from our existing position where the length of a Parliament is up to five years”.
He was saying that the Government might well have chosen four years but for the fact that five years is the current maximum under the Parliament Act 1911. I simply do not follow the logic of that argument. If we are trying to do our best to find the right number of years for a fixed term of Parliament by taking all relevant factors into account, surely of all the factors the current maximum is the least relevant, unless you take as your objective giving the Government of the day, whether they be Labour or Conservative, as long as possible within the existing maximum. The objective should be entirely different; to make the Government and, indeed, Parliament itself more accountable to the public.
In conclusion, briefly, what is before us today is a constitutional issue. It is not, perhaps, of the greatest importance but it is certainly of some importance and it would therefore be highly desirable to reach a consensus if we can. Unfortunately, there is no room for a compromise between four years and five years. We often reach a consensus in that way but no one, I think, suggests a fixed term of four and a half years. When the Government chose five years, they could not have had before them the evidence which is now before us so, like the noble and learned Lord, I hope very much that they will give way on this occasion and accept the amendment. If they do not and insist on their opinion in this matter, despite the great weight of opinion the other way, there will be little point in anyone ever giving evidence before Select Committees again. They will simply be wasting their time. For that reason, I will support the amendment.
Lord Butler of Brockwell
My Lords, I decided to intervene briefly in this debate because I felt that the arguments advanced by my noble friend Lord Armstrong at Second Reading had not been given voice and because he was not in his place. He now is in his place and I think that he could put them a lot better than I can. They have been referred to, but I should like to reinforce them.
Like other noble Lords, I do not like this Bill. It is an unnecessary Bill. As the noble Lord, Lord Cormack, said, if the Government had wanted to commit themselves to a five-year Parliament, they could have done that under the old legislation. For that reason, as the noble Lord, Lord Grocott, said, this is not a Bill that binds the present Government so much as it does future Governments. There has been a lot of speculation in the debate about the Government’s motives for what they have done. I do not want to enter into that, because I agree with the noble and learned Lord, Lord Falconer, that what this House should do is decide on principle what is better for the country. On that issue, I come down in favour of the view expressed by my noble friend Lord Armstrong at Second Reading. I do so for a reason which I am sure will be dismissed as a Sir Humphrey-esque argument, as a bureaucrat’s argument, but I am not ashamed of that. Those of us who have seen government from the inside—the noble Lord, Lord Dobbs, made this point, rather unexpectedly from my point of view, but from a political perspective—have reason to put to the House that too frequent elections are not good for the government of the country. Terrible things are done in the lead-up to a general election. Decisions are put off or are made in budgets which are designed to attract voters and are not in the interests of the country. For example, it will be in your Lordships’ memory that the Personal Care at Home Bill, which was introduced by the previous Government before the general election, was a blatant piece of electioneering. I made the point then that, in the economic conditions of the country, it was irresponsible to the highest degree. So to have elections more often than we need to have is not in the best interests of government.
Some people may say that I am against democracy, but that would be unfair. Of course there have to be elections. However, if there is a choice between every four years or five years, I would argue in favour of a five-year term.
Lord Lloyd of Berwick
Can the noble Lord comment on the point that all the experts who gave evidence, both in the House of Lords committee and in the House of Commons, came down in favour of four years? These were experts on our constitution, both in law and in practice.
Lord Butler of Brockwell
I should like to comment on that because the experts were, for the most part, either politicians or distinguished academics; they were not people who had seen government from the inside. That is why I am anxious to express this alternative point of view.
Lord Falconer of Thoroton
Can the noble Lord quote one bit of evidence in favour of five years? I suspect that the public have no view on whether it should be four years or five; it is for us to judge.
Lord Lloyd of Berwick
I shall answer on the noble and learned Lord’s behalf. The evidence given to the Power commission was clearly in favour of more elections rather than fewer, not more than four years apart.
The Deputy Chairman of Committees (Baroness Pitkeathley)
My Lords, I remind you that the amendment is being withdrawn.
Parliamentary Voting System and Constituencies Bill
Lord Lloyd of Berwick Excerpts(13 years, 9 months ago)
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Lord Rooker
One can look at Hansard—the estimated time is about 14 minutes of debate. That was the first time the Commons have debated this issue. This is not the issue that they debated last November, of a “killer, fatal threshold”, although those are words I would refrain from using as that is not what it is.
The Minister’s comments about the electoral register, notwithstanding the debates that we have had, show that we are in a complete and utter mess as a democratic country if we cannot say that we have a national register that measures the electorate for a particular ballot. That is one criticism of my amendment to the Bill, because we do not know what the electorate is. The electoral register includes foreigners, who may vote in some elections but not others, the dead and those who have moved home or who own a second home. The fact that we have no national electoral register prevents any serious discussion about the mechanism of our democracy. That has been thrown into a starker light than it ever was before. However, I do not want to go down that road, as I want to be quite brief.
I submit that the issue of substance lies not in the figure of 40 per cent—that could have been any other figure that was thought to be reasonable, whatever people might have said—but in whether the referendum should be binding, without any constraint whatever. We have never done this before in this country, and a precedent is being set. That is the point that I am seeking to make with my amendment to the Bill—not to argue against the result of the AV referendum one way or the other. The serious problem is that we are creating a major precedent in our constitutional arrangements, which the other place has not addressed. That is why I ask, even at this late stage, for the Bill to be sent back so that the other place can address this issue to the degree that it should.
I am not against reform of our constitutional arrangements, but such reform is likely to be sustainable if there is a degree of consensus. With proper debate—White Papers, Green Papers, Joint Committees—we get a consensus about these things and we test the ideas. That has not been done in the case of the proposed binding referendum, the legislation for which would be in place to be activated, whatever the result and whatever the turnout. However, that consensus has not been achieved, although I know there has been cross-party voting, including last night—the Minister declined to mention that several Tory MPs voted for my amendment to the Bill, but I will not make a major point about that.
My point is that, as I face the Chamber, the two oldest political parties in the country are joining together to rewrite our constitution on a daily, as-you-go-by basis. In other words, we do not know what is happening next. This cannot be the right way to operate; it cannot be the right way in which to bring in a major constitutional change of the first ever binding referendum in the UK. There is no big picture by which we may judge this part of the constitutional changes—we know that there are others on the conveyor belt—and that is a major difficulty.
My amendments to the Bill were made in the spirit of compromise. Frankly, they say that the referendum shall be binding if more than 40 per cent turn up, and that is a compromise on my part. I do not think that a binding referendum ought to operate in a parliamentary democracy. The Minister said yesterday, in the context of the Isle of Wight issue, that it is not the opinion of this House that counts, but the strength of the opinion of this House that counts. I accept that, on the Minister’s test, the majority of one may be a bit shaky, but I have to say that that was on a 40 per cent-plus turnout of this House. While the level of the majority may not meet the Minister’s test, it certainly meets the test that we are actually voting for. I seek to move to strengthen the opinion of this House so that that can be taken on board.
There is plenty of time, but I know that a lot of time will not be spent on it. When history comes to be written and when this issue operates out there among the public, the question may be asked, subject to the result, “What on earth was Parliament doing?”. I want to be able to say that we used all the time available to test this issue to get them to think again. Today is an opportunity to do that. I beg to move.
Lord Lloyd of Berwick
My Lords, listening to the noble Lord, Lord Rooker, I am reminded irresistibly of the last occasion when we had before us a major constitutional Bill. I refer, of course, to the stages leading up to the passage of the Constitutional Reform Act 2005. There were then two main issues on ping-pong, just as—leaving aside the Isle of Wight issue—there are two main issues today. The first of the two main issues in 2005 was whether the Lord Chancellor should continue to be a Member of this House; the second was whether the Lord Chancellor should be required to be a lawyer. It was a Lords Bill, which of course this Bill is not. The first time round, the Government lost on those two issues by a substantial margin. The majority against the Government was 215 to 199. When the Bill came back from the Commons, the Lord Chancellor speaking on behalf of the Government said:
“Of course our power is to make the other place think again. They have thought again… Our job is to make the other place think again. Once we are satisfied that they have done so, then we should pay proper regard to their views”.—[Official Report, 21/3/05; col. 38.]
The question that I ask the noble and learned Lord, Lord Falconer, is whether he still abides by the principle that he stated so clearly on that occasion. They were the very last words that he uttered after a very long, drawn-out affair, which he will remember as well as I do, but they were the words that carried the day on that occasion. The Government won by 203 votes to 191.
The question I then ask is whether that principle should not be applied today. It seems to me that the case for applying that principle today is far stronger than it was when the noble and learned Lord, Lord Falconer, stated it, for on that occasion the Bill affected this House. It affected it because it would have abolished the office of Lord Chancellor—had that proved to be possible, which it did not—and ejected from this House the Law Lords, where they had been for 150 years or more. Nevertheless, on that occasion this House yielded to the other place. On this occasion, by contrast, the Bill seems to relate almost exclusively to the other place, not to us. Surely, if ever there was a Bill on which we ought to yield to the elected House, seeing as it relates to election to that House, it is this one. When the time comes, I shall therefore vote with the Government.
Lord King of Bridgwater
He did not go that far, but there was an implication of it in what he said. I listened from elsewhere, with the advantage of television, to the speech on the previous amendment of the noble and learned Lord, Lord Lloyd, who said that it was right that this House should ask the other place to think again. The noble Baroness, Lady O’Neill, made the same point. However, on whether votes should have an equal value as far as possible in each constituency and on ensuring that the next election takes place on fairer boundaries, this House has already asked the other place to think again. The other place has replied that it does not wish us to insist on our amendment. Our ability to challenge the other House is a very important power; it has to be used responsibly; it has to be used with great care. I respectfully suggest to the House that this amendment, very ingeniously and properly moved by the noble Lord, Lord Pannick, is not the sort of issue on which we ought now to challenge the other place for a second time.
Lord Lloyd of Berwick
My Lords, I voted against the amendment of the noble Lord, Lord Pannick, on Report. It seemed to me then, and it does so now, that a Bill which aims at equality as its underlying principle but which allows a margin of 5 per cent either way is both clear and logical. To allow a further margin of 2.5 per cent in very exceptional circumstances is neither clear nor logical nor, I suspect, necessary for the purpose of creating viable or workable constitutions. The noble Lord may have in mind specific instances of where it would make all the difference, but if there are such specific instances, they should have been dealt with as such in the Bill, as have been the Isle of Wight and Orkney and Shetland.
I asked myself throughout the original speech of the noble Lord, Lord Pannick, and what he has said today, the following question. Let us suppose that the Bill had originally allowed a 7.5 per cent margin either way of equality. Would the noble Lord then have tabled an amendment saying, “Oh, no, we had better allow an extra 2.5 per cent just in case”.? I do not believe that he would have argued that and, if that is the case, I cannot see how he is entitled to make the point that he makes in relation to 5 per cent.
I do not propose to pursue that argument—I may do so later with my learned friend and I have no doubt that he would beat me to it—because there is the more important question here, which I tried to develop during debate on the previous amendment. The noble Lord, Lord Pannick, has been severe in his criticism of the Government’s conduct throughout the passage of the Bill, and in many respects he may be right. However, to use those immortal words, we are now where we are, and I am unable to see how the noble Lord’s amendment, even if it were ultimately accepted by us, will cure the criticisms which he has made of the Government.
Of course it was our duty to examine the Bill with great care, all the more so as it is a constitutional Bill. The noble Lord, Lord Lawson, referred to this House in the previous debate as the protector of the constitution. That may be so, but we are not the sole protectors of the constitution; so is the House of Commons. The constitutional point raised by this amendment seems, as the noble Lord said, not to be of very great importance, although it is obviously of some importance. We have given the other House the chance to reconsider this point; it has done so; it has decided against the amendment of the noble Lord, Lord Pannick; and we should now accept its view.
Baroness Finlay of Llandaff
My Lords, before coming to the House today—and I hesitated before intending to speak—I felt that I should go back and look at the figures for the electorate of the whole of the UK and try to do some modelling on the sums. My conclusions have been based on fairly simple maths. It may be that we are where we are, but it is clear that we have lost 25 per cent of MPs from Wales and that Wales, Scotland, Northern Ireland and England will have their own areas. There have been arguments about Cornwall and rural constituencies in particular. I wanted to look at whether there might be unintended consequences of the legislation. In other words, are we really legislating for what we want to do, or do we run a risk of an unintended consequence? My noble friend Lady O’Neill put it succinctly. The point of the amendment is to allow a margin, in exceptional circumstances, so that the Boundary Commission is not locked into a difficult situation by the legislation if it comes across circumstances where the population has moved or the size of the electorate has changed and where it is suddenly faced with a constituency which does not fit within the relatively narrowly margin of 5 per cent. The principle of equality was in some ways abandoned over the Isle of Wight. That was a decision of both Houses. It was agreed that exceptional circumstances applied there. This amendment is about exceptionality. It would put a safety margin in the Bill. It would not undermine the Bill’s overall principles of a more equal distribution of votes and a reduction in the other House’s size.
It was the relative brevity of the debate in the other place that prompted me to pull out and go through the figures last night and early this morning. I have come to the conclusion that we should supply the Boundary Commission with a safety margin for it to provide workable constituencies so that the people of this country are well represented in the other place. Therefore, I support the amendment.
Parliamentary Voting System and Constituencies Bill
Lord Lloyd of Berwick Excerpts(13 years, 9 months ago)
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Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for his speech, but there is a fundamental problem with it; he referred to flexibility, but the amendment seeks to establish the principle that in a party political broadcast you should not be able to support an outcome in the AV Bill. The Electoral Commission says that it supports the intention behind the amendment, but goes on to say that it is not sure that it is necessary to achieve the intended outcome because of the main purpose issue in Section 127. Surely it is better that there should be clarity about what is and is not allowed—and what should not be allowed is support for an outcome in a party political broadcast, because that would drive a coach and horses through the expenditure limits. I seek the opinion of the House.
Lord Lloyd of Berwick
In the event that the amendment is successful, it seems an awful pity that we should use this language. It makes no sense as drafted, as I think the noble and learned Lord accepts. Is there a way, even at this late stage, in which we can adopt his alternative language, which is much clearer?
Lord Falconer of Thoroton
My Lords, the Clerk, brutally, is shaking his head. I would be willing to adopt the noble and learned Lord’s approach to this matter. However, if the House adopts the approach that I am taking, I anticipate that the Government will either reject the amendment in the other place, or, if having had time to think about it the amendment is accepted there, the House of Commons could then tidy it up. I respectfully and tentatively suggest that the House should vote on the principle of whether there should be a prohibition on political parties being able to support or oppose the AV referendum in their party political broadcasts. If my amendment is carried, it can be tidied up or rejected in the House of Commons later.
Parliamentary Voting System and Constituencies Bill
Lord Lloyd of Berwick Excerpts(13 years, 9 months ago)
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Lord Lloyd of Berwick
Apart from the question of timing and the chairmanship of an inquiry, or whatever we call it, what is the substantive difference between a public inquiry and what is proposed, a public hearing? Can the noble and learned Lord summarise the substantive differences for my sake?
Lord Falconer of Thoroton
I am grateful to the noble and learned Lord for that opportunity. As I am sure that the noble and learned Lord will confirm, a public hearing simply involves an opportunity for people to come to a room—a town hall or a village hall—to make or read a statement. It is recorded, and that is it. The next person then stands up and makes a statement, and then he or she sits down. It goes on like that. A record is kept of what is said, but there is no resolution of any issues. The statement of what is said is then, I assume, placed on the web so that everybody can see what was said
A public inquiry would involve Mr X saying, “I think that the boundaries should be here”, and Mr Y saying, “I think that the boundaries should be there”. Then the chair—having heard all the representations that people want to make, determining what the process is, having heard what everybody has said—says, “I recommend to the Boundary Commission that it should draw the boundaries there”. So it is a process where issues are identified and some resolution is given. That is the fundamental difference.
Lord Marks of Henley-on-Thames
My Lords, what it means is that there is a difficult and delaying process at that stage because there is the interposition of the public inquiry; that is, with a public hearing as proposed by the Government, there is a hearing which is essentially, as the noble and learned Lord, Lord Woolf, explained, an evidence- and argument-gathering procedure, orally in public, prior to a decision-making process by the Boundary Commission which, as I say, we should trust.
The government amendments quite properly exclude this unhappy intermediate stage in the decision-making process. Furthermore, the cost of the public inquiry proposed by the noble and learned Lord, Lord Falconer of Thoroton, is considerable. It cuts out a substantial and essential element of transparency from the system proposed by the government amendments. The opposition amendments would remove the requirement to publish the records of public hearings to enable informed public comment.
In terms of timing, the proposals of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Bach, would total 26 weeks in cases where there were proposals to revise recommendations—six for written submissions, 16 or 17 for public inquiries and then four for further inquiries. The proposals of the government amendments are much shorter overall—12 weeks for written submissions and public hearings, four for a period of secondary consultation and eight if revisions are proposed: so, 16 weeks rising to a maximum of 24 weeks. However, the amendments of the noble and learned Lord, Lord Falconer, keep his timetable down to 26 or 27 weeks only by cutting from 12 weeks to six the period for public written submissions; by cutting entirely the four-week secondary consultation period proposed by the Government and by allowing only four weeks instead of eight for the public to make written representations on any revised proposals.
At the heart of our position on these amendments is the notion that members of the public are more likely to make written representations than they are to attend long public inquiries, which would largely be the forum of the political parties. The amendments proposed by the Opposition favour a return to a long, cumbersome, legalistic and expensive decision-making process of public inquiries going before the Boundary Commission’s recommendation, a process whose status is entirely uncertain because its effect on the final decision is not clear.
Finally, an entirely lawyerly point, Amendment 27GH of the noble and learned Lord, Lord Falconer, inserts a reference to subsection (4)(b) of government Amendment 27G which, by Amendment 27GD, they have entirely deleted. That is a small point by comparison with the central point. The public hearings proposed by the Government amendments are essentially creatures of the public with longer timescales for written representations and a shorter, simpler arrangement for public hearings with all the evidence and all the argument then considered by the Boundary Commission, which we ought to trust. I urge the House to accept the government amendments and reject those proposed by the noble and learned Lord, Lord Falconer.
Lord Lloyd of Berwick
Experience shows that where two or three lawyers are gathered together one is sure to disagree. I entirely agree with every word that has fallen from the noble Lord, Lord Marks, which I am afraid inevitably means that, with great respect, I venture to disagree with the noble and learned Lord, Lord Woolf. He suggested that the advantage of his proposals was flexibility. I suggest that the disadvantage is an absence of simplicity. I can see no possible advantage in having a double decision process in a matter such as this. On the face of it, one would think it must increase the likelihood of an application for judicial review. In any event, the question should not be decided simply by that—it was a strong argument at one stage. But now we have before us not the original amendment proposed by the Convenor, the noble Baroness, Lady D’Souza, which in its way was a very good amendment, but an amendment from the Government containing everything that was in that amendment, which, to my mind, is essential. A public inquiry as such is not essential. A public hearing is, and that is what is promised.
Lord Pannick
My Lords, I share the Government’s objective here, which is to make this process more efficient. At the moment it is not efficient. It is too slow, too cumbersome and there are too many lawyers involved. I therefore share the Government’s objective. However, I also share the concerns so eloquently expressed by the noble and learned Lord, Lord Woolf. The Government will abolish any effective inquiry and will introduce a procedure which will ensure that the decision-maker—and here I say to the noble Lord, Lord Marks, and the noble and learned Lord, Lord Lloyd of Berwick, that there is only one decision-maker on the opposition amendment: the Boundary Commission—does not hear the oral representations that have been made. The person who does hear those oral representations has no role in communicating to the decision-maker any advice on what he or she thinks of what he or she has just heard. It is absolutely inevitable that the introduction of such a procedure will exacerbate rather than diminish the sense of grievance that has led people to make representations in the first place.
Terrorist Asset-Freezing etc. Bill [HL]
Lord Lloyd of Berwick Excerpts(14 years, 1 month ago)
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Lord Lloyd of Berwick
Perhaps I may be permitted to start the ball rolling before my noble friend Lord Pannick speaks. I am sure that your Lordships are waiting to hear his views, but as I did not have an opportunity to take part in the Second Reading debate, perhaps I may express my views on the amendments first.
The government amendments were published only on Monday, so I saw them only yesterday. We have not had long to reflect on them, but one thing that is clear is that the Government have listened to what was said on Second Reading, they have studied carefully what was said in the excellent report of the Constitution Committee and they may even have had a preview of what the Home Office review will say on the subject. On any view, the Government have kept an open mind on the matter up till now, which should surely be a subject for congratulation. If I may say so from the safety of the Cross-Benches, that makes a welcome change.
The amendments now proposed are so fundamental that at this stage we need another Second Reading debate, particularly in relation to what is proposed in the appeal to the High Court on fact as well as on law. That is a fundamental change of huge importance, and we will come to that later.
On the matters covered by this group of amendments, I start with the new interim designation order. That seems to be the logical starting point, although of course it will come later chronologically as we go through the Bill. There may be those in the Committee who will object to “reasonable suspicion” in relation to the interim designation order. Some may prefer “reasonable belief” in that context, as well as in the context of the final designation order. I do not share that view. Reading the new clause took me back to what I wrote in 1996 on page 86 of my report. I have many spare copies of that report at home if anyone would like to see one. That was of course long before 9/11 and long before Resolution 1373. I said then that there should, exceptionally, be a power to freeze assets before the suspect is arrested or charged. It should be open to the police to go before a judge ex parte—that is, without notice to the defendant—and satisfy him that they have reasonable grounds for suspecting that the defendant is about to commit a terrorist offence. I recognised then that that would be a radical step to take but I said that it was justified because of the paramount need to neutralise terrorist funding before the terrorist offence is committed.
Therefore, I have no difficulty at all with “reasonable suspicion” in relation to the interim designation order. The problem as I see it is somewhat different. If the designee, if I can call him that, is able to go before the judge as soon as he has notice of the order, as is now intended, would it not be altogether more sensible for the judge to make the order in the first place? That is how it is done in other branches of the criminal law, so why not here? What is the reason for the Treasury making the order itself rather than applying in the ordinary way, with which we are all familiar, to the judge? So much for interim designation orders.
I turn to the final designation order. Of course I welcome the change from “suspect” to “believe”, although in practice there may not be quite as much difference between those two things as is sometimes supposed. The real problem here, as indeed in the case of interim designation orders, is that, a fortiori, if we are to impose a permanent designation on the individual, we surely need something much more solid than either suspicion or belief. We need fact. Before we impose a final designation order or final freezing order on all his assets, the defendant must surely have been arrested or charged with some criminal offence. That was certainly my view in 1996 and it is certainly Liberty’s view today in its, as always, excellent briefing paper. However, more important than either of those, it was the view of the noble and learned Lord, Lord Phillips, in Ahmed. In that case, he referred to paragraph 1(c) of Resolution 1373 and then went on as follows:
“Thus what the Resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on a criminal charge, but would make the long-term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.
As I understood the noble Lord, Lord Sassoon, he does not accept that, and he does not accept that that is the view formed by the Supreme Court. But with great respect, it seems to me that that was its view. It comes to this. The noble Lord has gone a very long way to meeting all the problems that we raised on Second Reading and that have been raised elsewhere. But I ask him to go one step further. Can he agree between now and Report that the final orders should be made by a judge on the application of the Treasury? If so, he will have my complete support on that occasion. And more importantly, it will be in line with what I believe was the intention of the Supreme Court in Ahmed.
Lord Pannick
The reasonable suspicion criterion was a feature of the Bill that caused concern both in your Lordships’ House and elsewhere. Concern was expressed during passage of the temporary provisions Bill earlier this year; expressed by your Lordships’ Constitution Committee; and expressed by a number of your Lordships in Committee. The concern, quite simply, was that the Government should not enjoy the power to freeze a person’s assets, with all the damage and inconvenience that that involves, unless they have at least a reasonable belief that the person concerned is involved or associated with terrorist activity. That is why I tabled Amendment 3, to which the noble Baroness, Lady Hamwee, has added her name. It would substitute reasonable belief for reasonable suspicion.
I am very pleased that the Minister has listened to the arguments. He has accepted that, other than for a temporary period of 30 days, assets should be frozen only when the Government believe, on reasonable grounds, that the individual is involved with terrorist activity. I am sure that all noble Lords will be grateful to the Minister and his team for their response to the expressions of concern, and for the care with which they have drafted and presented these amendments. For my part, I accept that it is appropriate for the Government to have an interim power to freeze assets for a period of 30 days simply on the basis of reasonable suspicion. I accept that because there may be cases when they have only limited information and reasonably wish to act to prevent dissipation of the assets while investigations are concluded. A period of 30 days seems a reasonable time for that interim exercise. Of course an interim order, although undoubtedly very inconvenient for the person concerned, will not have the same draconian effect as a freezing order that continues for a lengthy period. I welcome the government amendments.
There are three points of detail in relation to the amendments in this group. First, it would be desirable for Amendment 29—the new clause which confers power on the Treasury—to make an interim designation to specify the purposes for which the power may be exercised. I am concerned that the drafting does not identify the specific mischief that the interim designation for 30 days is designed to meet. Subsection (1) of the proposed new clause simply repeats the substantive criteria for a final designation save that the criterion for the interim designation is reasonable suspicion rather than reasonable belief.
Lord Carlile of Berriew
My Lords, I declare an interest as the shortly outgoing independent reviewer of the Terrorism Act 2000 and some connected legislation. I, too, congratulate the Minister, my noble friend and the noble Lord, Lord Pannick, on the work that has been done to produce the outcome that we have today. We are concerned here about aspects of the public interest and particularly national security. There is a clear paramountcy in ensuring that assets are not used to fund terrorism; the issue is the proportionality of the efforts undertaken to prevent that from happening.
I am sorry that I was not able to be here to speak at Second Reading. I shall simply add one sentence to the few remarks that I wish to make on this amendment, which is ever so slightly out of order. I note that Clause 25 makes provision for an independent review of the provisions contained in the Bill. It is not inevitable that the same independent reviewer as reviews other counterterrorism provisions should review these provisions, but for efficiency and consistency it would seem sensible that the same person should do it—it will not be me because I shall be going out of office shortly—because there are similar issues to be considered in relation to both pieces of legislation.
I agree with those who have said or implied that consistency of standards of proof is required wherever possible and that those standards should be as high as is proportionate and consistent with the national interest and the issues that we are concerned with. It is my view that reasonable belief might be transliterated elsewhere in raising the standard required in other aspects of counterterrorism legislation. I certainly welcome it.
The noble and learned Lord, Lord Lloyd of Berwick, raised early in this debate the issue of orders being made by judges rather than by the Executive. I do not have a very strong view about that, save to point at the evidence. Like it or not, if one looks at the control orders regime, one sees that judges have shown themselves to be extremely robust about the orders and the conditions applicable to them in rejecting executive acts or amending those that have taken place. That separation between an order made by the Executive and a review by the judiciary on whatever basis seems to work and does not need to be changed. There is a tried and tested process whereby judges, with the help of special advocates—I admit that their activities could be improved if greater assistance were given to them—reach decisions that robustly protect the rights of the individual.
Lord Lloyd of Berwick
Can the noble Lord think of any case other than control orders where orders of this kind and having these consequences are made by the Executive rather than by the judge?
Lord Carlile of Berriew
There are no other orders that are comparable with these, so any other context would seem to me not to be relevant. I say that with great respect to the noble and learned Lord. We are talking about a pretty special form of litigation and legislation.
I close simply by saying that a useful decision has been reached and the Government have shown themselves, in this instance at least, to be very responsive to the informed opinion that was given at an earlier stage in this Chamber.
Lord Sassoon
My Lords, I am grateful for the important contributions that we have had to this discussion and for the focused points. I appreciate the remarks from around the Committee in response to the amendments that we have brought forward. On one or two of the procedural points, I apologise if noble Lords believe that our amendments came forward a bit late in the day but, as your Lordships will appreciate, they are fundamental amendments to the Bill and, with the Recess and the summer holidays, it took some time, both within the Treasury and with my colleagues in Government, to ensure that we got them absolutely right. We took the time necessary to do that, but I apologise if it has been a bit of a scramble in the past couple of days.
On the question that a number of noble Lords have raised about the process of amendments to amendments, my understanding, although I am the newest of new boys here, is that amendments to amendments are possible but the reversal of amendments on Report is not. Whatever the construction is, though, I am sure that we will be bound by whatever the conventions of the House are. However, I take the point that there are potentially a number of bits of tidying up. We will come to the individual items, but there are certainly one or two things that I shall take away and reflect on. I take that procedural point.
On the question of the publication of the Home Office review, I can only repeat what I said in my opening remarks—I have no specific date. However, I note the remarks that have been made today, and I will take them away and relay them to my right honourable friend the Home Secretary.
I turn to some of the specific points that have been raised. A number of noble Lords, starting with the noble and learned Lord, Lord Lloyd of Berwick, have made the suggestion that it should be for a judge to make the order rather than a Treasury Minister, with the courts then reviewing the order if it is appealed. I cannot do more than refer to the powerful case succinctly put by my noble friend Lord Carlile of Berriew, who said what I would probably have said at greater length: we believe, given the nature of this regime and the nature of the process that requires Ministers to take account of operational information, that it is appropriate for Ministers to make the initial order, but making that order has to be done on the considerably strengthened tests that we are now proposing and there has to be a concern that the public would be put at risk if the order were not made.
Lord Lloyd of Berwick
Will it be open to the Treasury to make an order in a case where it cannot be revealed to the defendant what the case against him is? In other words, is it accepted that the Treasury will be applying the decision in AF?
Lord Sassoon
I do not believe that the rules about what evidence can be brought before the court are in any way changed by what we are proposing from the conventions that apply. It relates in some way to the point that the noble and learned Lord made about the nature of the evidence that should be there before an order is made. The noble and learned Lord, Lord Lloyd of Berwick, quoted one Supreme Court justice; I could quote others but perhaps I should not detain the Committee. I might have referred to that at Second Reading. The noble and learned Lord, Lord Rodger, has in some of his remarks expressed a different view about the nature of the supporting evidence in order to support very much a preventive approach to this regime.
Lord Carlile of Berriew
My Lords, my noble friend Lady Hamwee has provoked me, at least into saying to her that it will cost her no more than a drink later. However, with great respect and affection, I want to raise a substantive point about her amendment because I think that she is wrong.
We have to take a little walk down the real world of everyday terrorism activity. There are people who do not commit what might be held by the courts to be terrorism acts but who have the custodianship of money, and that money may, for example, be about to be used for the purchase of guns—a subject that is very topical at present. I think that, if I provoke him, the Minister will confirm that these events can happen very quickly and the police may have to act at the last minute. As former Ministers opposite will know, from time to time events have occurred that have required extremely urgent action. In those circumstances—particularly now, when we have a regime in which there are to be interim orders—a threshold has to be set which I am afraid may temporarily disadvantage some people but will protect the public from possible extreme danger. We have to make a judgment about whether we do that or whether we adopt the approach which some of the briefings have suggested. However, I want to make the point that in the real world of terrorism caution has to be the watchword, particularly if the rights of individuals are fully protected in a review mechanism which is provided later. Indeed, this is also part of the answer to the point raised in the previous debate about whether there should be an executive act followed by judicial review or a judicial decision followed by judicial review. In the real world, I am afraid that an executive decision followed by judicial review is the only way of meeting the fast-moving events which occur when there is a real terrorism threat.
Lord Lloyd of Berwick
Does the noble Lord accept that in the real world, as I understand it, the defendant will have to be informed at once if this order is being made by the Treasury, and he can go to the next stage—to the court—and get a review?
Lord Carlile of Berriew
I agree that that may be the case but, even if it is, the exigencies of the situation will have been met, and that is the responsibility of government.