Queen’s Speech

Lord Carlile of Berriew Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I have an irresistible yen to return to the subject of the gracious Speech.

Very early last Wednesday morning, I was awoken by my annual fantasy in which the gracious Speech consists of the declaration that Her Majesty’s Government will introduce absolutely no legislation whatever in the new Session. It is, I am sure many would agree, an open question whether we would lose anything by a legislative sabbatical. However, here we are, again prospecting in a rich if opaque vein of home affairs and legal reform legislation—if you cannot think of anything else, saddle Parliament with seven or eight law reform Bills.

My first subject is the Bill of Rights, which of course is not going to be legislated in this Session but nevertheless will be discussed. I urge your Lordships to consider that what really is of importance in relation to the Bill of Rights is the quality and enforceability of rights, not their source, and that it would be wrong for us to be too hung up on whether the rights come from Westminster or Strasbourg. I agree almost entirely with the excellent speech of the noble Lord, Lord Pannick, on this subject. I add that if a British Bill of Rights gives not less than the European Convention on Human Rights, and especially if it adds some rights that were not even thought of in 1950—for example, consumer rights, environmental rights and privacy rights—I for one will keep an open mind as to whatever is meant by the concept of repatriation of rights.

Turning to the proposed extremism Bill, here I strike a strong note of caution. I am sure that your Lordships will all wish to give anxious scrutiny to every detail of this Bill. As one academic analyst has suggested to me, there is a danger that we may make it an offence for a person to encourage another person to encourage another person to publish a statement that indirectly encourages another person to instigate someone else to commit an act of terrorism. That is the sort of flavour that has been suggested so far when there has been discussion about an extremism Bill.

My note of caution is founded on what I hope is an ethical principle. As the distinguished Professor Stuart Macdonald has said, there is a real danger that,

“it is contradictory—and, ultimately, self-defeating—to insist on a criminal justice-based framework without adhering to the features which give the criminal law its moral authority in the first place”.

Therefore, while I am open-minded about an extremism Bill, at least until I see what it says, I am concerned that the Government should ensure that it is examined for its compliance not only with the convention but with the assurance to your Lordships that it is proposed on ethical and realistic grounds. As a long-time jury advocate, I can put it another way: if the Bill is not going to result in convictions before juries—if juries are going to rebel against it because it is not the sort of thing they think people would be convicted of—it should not be brought before Parliament. I urge the Government to carry out appropriate analysis of whether the Bill will work in practice before deciding what its detail should be.

My final comment is about the Investigatory Powers Bill. I would have spoken about prison reform, but I entirely echo what was said by my noble friend Lord McNally. I absolutely deprecate what Mr Gove has been saying about the European referendum, but I am glad he is good at something. He has actually been rather good; he is the first Lord Chancellor or Home Secretary in a generation who has given us the opportunity to reform the penal system.

Coming back to the Investigatory Powers Bill, as a former Independent Reviewer of Terrorism Legislation, I have had the advantage of seeing a lot of intelligence and a great deal about the threat and risk that we face. I would say to your Lordships, perhaps particularly to my noble friends on this side of the House, that puristic libertarianism does not always provide a holistic sense of civil liberties. We must look at what is really required by the security services. That must be scrutinised, of course, but no Bill has ever been scrutinised more before legislation than this Bill. I recommend to your Lordships that we pay the closest attention to what was said by David Anderson, my brilliant successor as independent reviewer, and by the RUSI committee, and that we do not degrade the capacity of the authorities to catch the most dangerous people in our society.