Queen’s Speech

Lord McNally Excerpts

Monday 1st June 2015 Lords Chamber

[Lord McNally (LD)]

My Lords, in intervening in this debate, I must set the context in which I do so. Since March 2014, I have been chairman of the Youth Justice Board for England and Wales. The YJB is an arm’s-length body within the Ministry of Justice, responsible for the care of young people aged under 18 who are serving sentences in custody or in the community. We also work actively in programmes aimed at diverting young people from crime, and in promoting the positive resettlement of those who have served their sentence. As chairman, I have a responsibility on behalf of the YJB to advise the Secretary of State on matters pertaining to youth justice, and I will certainly be looking to the wide range of experience in this House to help me in that work.

My term of office lasts until March 2017. Being chair of an arm’s-length body does put certain constraints on my political activity. When I was appointed, the Cabinet Office guidance said that I,

“should take a step back from front-line politics”.

On hearing this, a cruel friend from my Labour Party days said, “But you did that when you joined the Liberal Democrats”. On the contrary—I take pride in the fact that the Liberal Democrats served with distinction on the front line in government between 2010 and 2015. We proved that coalition government could work, and I can say, as one who has worked in and around Whitehall and Westminster for the last 50 years, that it was far less faction-ridden and more cohesive than some of the single-party Governments we have seen over that period. No one was called a bastard; nor was anyone accused of being psychologically flawed. As has been said by others, I think history will be kind to us for what we did and the way we did it.

My old mentor Jim Callaghan always gave the old sailor’s advice to those moving on: “Don’t distract the man at the wheel and don’t spit on the deck”. I will try to follow that advice regarding my successor at the MoJ, the noble Lord, Lord Faulks, to whom I send particularly good wishes. However, if I had one piece of valedictory advice it would be this. The gracious Speech indicates the Government’s determination to bring the public finances under control and reduce the deficit. For a department not protected by any ring-fencing or election campaign pledges, that means immediate cuts for the MoJ.

One of the most bruising experiences in my own time as a Minister was the negotiations with the Law Society and the Bar Council about legal aid. I urge the Secretary of State to engage in immediate dialogue with the professions, and indeed with the Opposition, to see whether a long-term agreement can be reached on the size and scope of legal aid and the changes needed in the structure of the legal profession.

In the latest edition of The House magazine, Andrew Caplen, president of the Law Society, says:

“In these times of austerity, we need parliamentarians and the legal profession to work together to build on what we have and develop a justice system fit for the future”.

The Law Society will be working with the new Government and Parliament to make this vision a reality. It will not be easy. Agreement may be very difficult to achieve. But having gone through that period, I say this: unless we try, we will have another five years of trench warfare between the legal professions and the Government. That will not be to the credit of either side.

When I see strikes and walk-outs and members of the legal profession marching outside the Ministry of Justice with placards, I warn them about the credibility of the profession in a difficult time. It is no use everybody coming up with easy solutions. As the Law Society says, this is a time of austerity and the MoJ has a restricted budget; if you want to come up with solutions, come up with practical ones. After all, it was the Labour Party that first cut legal aid; it was the Labour Party that had legal aid cuts in its 2010 manifesto. It does not behove any of us to say, “We’re in favour of legal aid and of getting it sensible, but we don’t agree with this cut or that cut”. Now is the time for some sensible solutions, including from the professions themselves.

I have only one or two other reflections on the gracious Speech. As was said by the noble Lord, Lord Dunlop, and the Prime Minister has made it so, one-nation Toryism is the guideline. So it is ironic that the first programme under that banner calls into question three of one-nation Toryism’s greatest achievements. First, it was a Conservative Government who created the BBC as a public service broadcaster committed to informing, educating and entertaining. If you doubt whether anything is at risk with the BBC, I simply ask you to watch Fox News for five minutes to realise what is being put at risk. Secondly, it was, as has been said by a number of speakers, a Conservative, David Maxwell Fyfe, urged on by Winston Churchill, who provided the decisive legal input into the European Convention on Human Rights that underpins our Human Rights Act. Thirdly, it was of course a Conservative Government under Ted Heath who negotiated our membership of the European Community and cemented that membership through the creation of a single market under Mrs Thatcher and the signing of the Maastricht treaty by John Major. I wish the Prime Minister well in his attempts to negotiate a new settlement with Europe, and I certainly agree with Chancellor Merkel that where there is a will, there is a way. I welcome the Bill to provide for a referendum before the end of 2017, and I hope that the Government will insert a provision for votes at 16 in that referendum, because if they do not, I suspect that this House will.

As for the Human Rights Act, I welcome the fact that the Government have given time for reflection. The problems caused by the Act are more imaginary than real, and Dominic Grieve is right to warn that withdrawal from the ECHR would inflict reputational as well as legal damage on this country. The Government would do well to look carefully at the suggestion by the noble and learned Lord, Lord Mackay, on whether there is a way forward on this.

On all the three matters I have referred to, things would have been handled differently if the Liberal Democrats had still been in government, but we are not. However, as I have said, mishandled they will imperil some of one-nation Conservatism’s finest contributions to our recent history, so flying solo puts added responsibility on the government Benches not to endanger that legacy.

I have a final point, which has come out of the debate. I am so glad that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has picked up the torch on IPPs. As the Minister who took that legislation through the House, I am absolutely sure in my own mind that Parliament thought it was ending IPPs, and Section 128 of the LASPO Act was there because the Lord Chancellor of the day thought that would be the way to do it. I urge the noble and learned Lord to look again at that freedom because this is not going to go away and, as he has indicated, it is a stain on our reputation and not what Parliament intended.

Other than that, I retreat into this semi-purdah, but with the confidence that, as the excellent speech by my noble friend Lord Marks demonstrated, these Benches will not be silent on these issues.

--- Later in debate ---

[Lord Faulks]

My Lords, this has been a lengthy but remarkable debate. It has contained a little bit of post-election blues, understandably, with various suggestions for improving the electoral system. But for the most part it has contained a number of extremely constructive suggestions from all quarters of the House, dealing with the ambitious electoral programme that is part of the gracious Speech. It is unsurprising that your Lordships’ House has looked carefully at all the different Bills and proposals contained in the Speech and has shown already an appetite for scrutiny of which I am sure that we will see evidence in the months to come.

To some extent, I will not have detailed replies to the various suggestions, because of the fact that this is the first Queen’s Speech in the new Parliament, and quite a few of the Bills have not even been published. But what has been said has been extremely valuable, and I can assure the noble Lord, Lord Foulkes, that I shall take back those observations that are relevant to the Secretary of State for Justice. All the comments contained in this debate will be considered carefully by the Government.

I should also like to congratulate our maiden speakers, coming appropriately, given the theme of the debate, from different parts of the United Kingdom. There was the right reverend Prelate the Bishop of Leeds, a veritable northern powerhouse himself. My noble friend Lord Dunlop unusually made his maiden speech from the Dispatch Box; he will be a valuable ministerial colleague. As many noble Lords know, he has great experience in an area in which he will be scrutinised, or the proposals will be scrutinised, in considerable depth. The noble Lord, Lord Lisvane, has kept us waiting a little longer before making his maiden speech, but it was well worth the wait. We are grateful for all their speeches, and I know that they will greatly inform our debates in future.

The Government are committed to governing for the whole of the United Kingdom. We are one country and we will govern with respect, giving due and proper recognition to our four constituent parts and their Governments. Notwithstanding the penetrating analysis by my noble friend Lord Forsyth of some of the difficulties, particularly in relation to Scotland, I share the positive approach shown by the noble Lord, Lord McFall. We should be looking forward. Devolution enables decisions to be taken in closer proximity to the people whom they affect and gives us the safety and security of being part of the bigger United Kingdom family of nations. We believe in rebalancing the economy to enable wealth to be created more fairly and evenly across the whole country. The devolution packages that have been considered in the course of this debate today will provide the incentives necessary to drive growth in each part of the United Kingdom.

In this Parliament we will fulfil our commitments and implement as fast as possible, as is consistent with good government, the further devolution that all parties agreed for Wales and Scotland, and deliver the Stormont House agreement in Northern Ireland. In parallel, we need to have governance arrangements that are fair for England; in that context, we will bring forward the proposals on English votes for English laws.

I acknowledge that there has been a considerable groundswell of support around the House for what has been for the most part described as a constitutional convention, although various other expressions were used in the course of the debate. The Prime Minister has said that he wants to make our United Kingdom work for all our nations. The Government welcome a discussion on how best to do that, including ideas for constitutional discussion and debate. There were some suggestions before the debate that such a convention should draw up a statute or charter of the union, such as a charter most recently recommended by the Bingham Centre for the Rule of Law, referred to by my noble friend Lord Norton of Louth. In the Government’s Command Paper The Implications of Devolution for England, the Conservative Party said that if a constitutional convention or commission was established, it should be concerned with the effective functioning of the union and could consider the case for a statute of the union, but that such a body should not delay plans for further devolution or the introduction of English votes for English laws. There was, of course, no reference to such a convention in the Conservative Party manifesto, as opposed to the manifestos of Labour and the Liberal Democrats.

I know that English votes for English laws was criticised, notably by my noble friend Lord Lawson, who deplored the idea of there being two classes of Members of Parliament. Attention was drawn to the difficulty of identifying issues where the Barnett formula would be excluded. In answer to the noble Lord, Lord Lennie, I am told that there were a number of Bills in the last Parliament which would have satisfied the criteria and that there is one Bill—the education and adoption Bill—to be introduced shortly which will fulfil those criteria. However, the Government are revising Commons rules to make the law-making process fair and sustainable and changes to Standing Orders will ensure that Bills, or parts of Bills, that do not apply to all parts of the UK will be voted on only by MPs representing affected constituents.

Turning to Northern Ireland and the Stormont House agreement, the Bill gives effect to key elements of the Stormont House agreement that will deal with the legacy of the past. There have been problems in relation to welfare reform, as noble Lords are aware, and it has been said that the UK Government may need to take control of welfare. The Government agree that the situation is serious, which is why the Secretary of State has chaired intensive discussions over recent days. Welfare reform is a key part of the agreement. Without it the Executive’s budget does not add up and that potentially puts devolution at risk, so it is essential for everybody that these issues are resolved, as a number of noble Lords said.

Reference was made to the commitments made in the Stormont House agreement to deal with the legacy of the Troubles. The Government will establish a historical investigations unit, provide for an independent commission on information retrieval and establish an oral history archive. The House will recall the outstanding speech of the noble Lord, Lord Bew, which emphasised the importance of contextualising these investigations so that they do not frustrate what should be achieved by them.

As to Wales, I am glad that the noble Baroness, Lady Randerson, so recently associated with Wales in a ministerial capacity, welcomes the changes delivering what the Government have promised, although she indicated that there were certain areas in which she will push for more.

I turn to the Government’s plans to make the criminal justice system work better for victims—a matter which I will deal with, as my noble friend Lord Dunlop said. Measures to increase the rights of victims of crime will make sure that victims receive the support and information from criminal justice organisations to which they are entitled. This is an area on which all parties’ manifestos contained proposals of a similar nature.

Victims often feel let down and they are the people we owe the greatest duty of care towards. Our plans to enhance victims’ rights go hand in hand with the improvements we are making to help victims of crime navigate the criminal justice system, access the information and support they need and protect vulnerable victims and witnesses in court.

In December 2013, the Government implemented a revised victims’ code to give victims clearer entitlements and a louder voice in the criminal justice system with, for the first time, the right to ask to read their personal statement to the court. However, the experience of victims in the criminal justice system too often falls short of what they have a right to expect. Enshrining victims’ rights in primary legislation will make absolutely clear to criminal justice agencies that they must comply with their duties towards victims.

Before I turn to the substantial issue of human rights, I ought to deal with a number of matters which were raised during the debate. On the question of IPP sentences, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has assumed the mantle of Lord Lloyd, recently retired—and a remarkable mantle it is. The noble and learned Lord drew attention to the power that the Secretary of State has to consider responding to the challenge that IPP prisoners face. Of course, he and the House will be aware that a Secretary of State has to consider the individual and their tariff sentence but at the same time has to be minded about the Parole Board’s assessment of whether any individual may be a risk if released into society. It is something that will be on the Secretary of State’s agenda of things to be considered early in his time in office.

The noble Lord, Lord Dubs, referred to assisted dying and the Private Member’s Bill brought forward by the noble and learned Lord, Lord Falconer of Thoroton, in the previous Session of Parliament. I think that the Bill has found its way into the current ballot but is not terribly high up. I do not want to raise expectations in this regard but the Government are aware of the issue and will consider the question during the course of the next months or years.

I am glad that there is a general welcome from the noble Lord, Lord Ramsbotham, and my noble friend Lord Black for the judicial oversight in relation to bail. I know that the noble Lord, Lord Ramsbotham, will hold the Government very much to account in relation to prisons. I am glad that he welcomed certain signs from the Ministry of Justice that the Secretary of State will place a considerable emphasis on education in prisons. I am sure that he will be anxious to ensure that the reforms that were begun in rehabilitation can be maintained and that prisons become a useful place of rehabilitation.

A great deal has been said about the Human Rights Act on all sides which is misleading. The Government were elected with a mandate to replace the Human Rights Act with a Bill of Rights. Human rights and their protection are the hallmarks of a civilised society and this Government will be as committed as any other Government to upholding fundamental human rights. But the truth is that the cause of human rights has been undermined by various failures of the Human Rights Act. We will now look at how to strike an appropriate balance between rights and responsibilities. There is a clear will in the country to ensure that human rights laws are not abused by those who would do us ill. That does not entail weakening fundamental human rights. It is important to emphasise that human rights were protected long before 1998, and they will continue to be protected under a Bill of Rights.

This will be a significant piece of legislation. It will be of interest to many inside Parliament and beyond. Over the coming months we will draw up proposals to implement this vital reform. We will then take time to consult widely and draft legislation which meets the needs of a modern democratic society.

I am sure that the noble and learned Lord, Lord Falconer of Thoroton, who I think welcomed the fact that there was going to be consultation in relation to the Bill, will accept that when one is making constitutional changes, for that is what they will be, it is important to pause. The changes to the role of Lord Chancellor, which he has very frankly admitted were perhaps a little hasty, are an example. We want to try to get this right.

I want to emphasise as strongly as I can that we are not getting rid of human rights, nor are we going to ignore the convention. The Bill of Rights is likely to reflect all the rights in the convention. We are anxious to maintain what has been a very proud history for many centuries of protecting human rights in this country. Human rights were protected by the common law. Human rights were protected by Parliament and will continue to be protected by Parliament. Let us look at the Modern Slavery Act, so recently passed by Parliament. That was not as a result of the Human Rights Act. Of course there is a prohibition on slavery contained in the convention. But our abolition of slavery long preceded the convention and modern slavery was a nuanced response to a particular situation.

During the debate the noble Lord, Lord Cashman, who is not in his place, seemed to imply that some of the advances in the approach to liberal causes were peculiarly as a result of the Human Rights Act. Same-sex marriage—an important piece of legislation brought in by the coalition Government during the last Parliament—had nothing to do with the Human Rights Act. In fact, there was a real anxiety that Strasbourg would prevent it becoming law, because when an attempt had been made to argue that there should be same-sex marriage, it did not succeed in Strasbourg, but because of a triple lock in the Bill it was generally considered—although not by all—that the legislation would survive.

The problem with the Strasbourg jurisprudence is that it has been of variable quality, and there has been a general sense that human rights—a noble aspiration, as has quite rightly been pointed out in this debate, stemming from what happened in the Second World War, finding its realisation in 1948 in the Universal Declaration of Human Rights and finding its way into the European convention—have been diminished by some of the ways in which it has been used. The Supreme Court has felt itself more or less bound, notwithstanding the provisions of Section 2 of the Human Rights Act. The case of Ullah was a wrong turning by the Supreme Court. In recent years, the Supreme Court has gradually begun to establish what is rather quaintly described as a dialogue with Strasbourg. The noble and learned Lord, Lord Hope of Craighead, rightly said that quite a lot of the Strasbourg jurisprudence is now woven into the common law like Japanese knotweed. That may be so, and I do not suggest for a moment that the jurisprudence from Strasbourg is all not of good quality.

Of course, we should not be insular. We should, in developing our law, look beyond our shores to Strasbourg but not only to Strasbourg. Many judges recently, writing extrajudiciously, have emphasised that the common law itself should be growing organically, as it does, that it has been far too centred on reacting one way or another to the Strasbourg jurisprudence, and that it should, in fact, have been looking elsewhere and not peculiarly at Strasbourg, and should sometimes have simply ignored Strasbourg.

We want a British Bill which will reorient our rights in Britain. The Supreme Court should be supreme. My noble friend Lord Flight referred to the fact that the Abu Qatada case went to our Supreme Court and was then overturned in Strasbourg. The beguiling metaphor used by the Labour Party in 1997 and then in the 1998 Act was that it was bringing rights home. In fact, it was subcontracting the rights to a considerable degree to Strasbourg. We want to bring rights home to this country so that they are protected by our Supreme Court and our Parliament—let us have faith in our Parliament to protect rights—rather than by the inconsistent jurisprudence of Strasbourg.

Nevertheless, we want to consult widely. The noble Baroness, Lady Kennedy, said that there has been a commission. Of course, she was a distinguished member of it; I was a less distinguished member. The majority of the commission concluded that there should be a British Bill of Rights. I welcome the fact that the noble Lord, Lord Marks, is not against the idea of a British Bill of Rights, but understandably—and we agree with this—it is what is in the Bill that is important.

It will not be forgotten that in 2007 Gordon Brown published a Green Paper exploring the possibility of a British Bill of Rights. In 2009 the Labour Government launched a consultation process into a Bill of Rights entitled Rights and Responsibilities: Developing Our Constitutional Framework. I hope that this House, in performing its scrutiny, will honour the fact that there is a mandate to produce this Bill, will scrutinise it carefully, perhaps consider some of the suggestions made by my noble and learned friend Lord Mackay about a degree of democratic override and decide what should be in any such Bill.

I conclude by referring to some rather mysterious comments, which I think mostly emanated from the Liberal Democrat Benches, about the Salisbury convention. They first found their way into a speech by the noble and learned Lord, Lord Wallace of Tankerness, on the first day. They were repeated, I think, in some form by the noble Lord, Lord Thomas of Gresford, and then by the noble Baroness, Lady Randerson. I may have misunderstood it but I thought that what was being said was that there was something unsatisfactory about the electoral system. Of course, the psephology was explained by the noble Lord, Lord Rennard. As a result of that, the Liberal Democrats felt comfortable in ignoring the normal convention—the Salisbury convention.

[Lord McNally]

This is straining at gnats. I was a member of the Cunningham commission that looked at the Salisbury convention and put forward a report adopted by this House. It had one very clear point in it; that is, the House of Lords retains the right to say no. If it did not retain that right, there would not be a need for a Parliament Act. That is the only point that is made. The idea that the Salisbury convention, or what was in the Cunningham convention, allows the Government of the day to get their will, whatever their proposals or whatever is said in a Bill, is not in any convention because the House of Lords retains the right to say no. That is all that has ever been said from these Benches.

[Lord Faulks]

That is precisely what I thought was being said by the Liberal Democrats. It is now on the record and I understand that I have been disabused of the misunderstanding that I must have had about the Salisbury convention. I looked at the Library Note and saw what was said about it. In due course, no doubt that will find its expression in a response to various Bills which satisfy the description of unacceptable in one way or another to the Liberal Democrats.

I hope and expect that all the legislation will be scrutinised with great thoroughness from all quarters of this House. I and the Government welcome that. I hope that it will be possible for the Government to fulfil their ambition that this should be a one-nation Government. There has been some competition for ownership of that phrase, originated, I think, by Disraeli. I thought I was a one-nation Conservative. I then found that Ed Miliband was a one-nation politician and, once again, we have attempted to reclaim that expression. It is in fact a noble aspiration—although “aspiration” is another word about which there is some contest.

In any event, I hope that we can be one nation as a result of the legislation, which this House will, no doubt, help to make better and help this Government achieve its aspiration.