Queen’s Speech

Lord Falconer of Thoroton Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I warmly welcome the noble Lord, Lord Wolfson, to the naughty step. The precise nature of our misbehaviours may vary from time to time.

I agree with everything the noble and learned Lord, Lord Judge, said, in particular about the talking-shop blancmange collapsing at ping-pong. I think the Cross Benchers thought, when they were electing the noble and learned Lord as Convenor, that they were electing Gregory Peck—because of his looks and because of the fact that he played Atticus Finch. In fact, as his revolutionary sentiments this afternoon have indicated, they elected Jane Fonda without realising it.

This is a Government where power is focused on a small number of elected politicians, unconstrained by the law, because they control lawmaking; unaffected by parliamentary scrutiny, because they use their Commons majority to reduce scrutiny as much as possible; and fighting back against the courts, not by responding to judgments, but by making it clear to the courts that if they find against the Government in important cases, those judges will pay a political price. This is completely exceptional in my experience. I describe an elective dictatorship, possible because the Executive control Parliament.

We are a liberal democracy: not liberal in the sense of “progressive” but in the sense that the Government govern for all the people, constrained by law and constitutional convention. We are not a dictatorship democracy where, once elected, the Government can do exactly what they like and ignore the interests of those who did or might vote against them. The consequences of a dictatorship democracy, which we are moving towards, is a divided society; a politically corrupt elite running the country; and an incompetent Government, because they are never properly scrutinised. Our constitution is designed to stop this happening. The combined power of parliamentary scrutiny and the force of law are the main constraints. These constraints have been significantly undermined over the last decade.

The degradation of those constraints is going to be accelerated by the constitutional proposals contained in the gracious Speech. This has happened because of the character of the Government over the last 10 years. Of course, there is the position of the current Prime Minister, who exudes an utter disdain for Parliament, for the courts, for Scotland, for law and lawyers. Every constitution depends on the sensitivity of the head of Government to constitutional propriety. The current Prime Minister’s attitude is brilliantly summed up by the noble Lord, Lord Hennessy, much revered in this place, who described him in an interview in January this year as,

“absolutely tone deaf to all the niceties of this. He hasn’t got a single feel for either proper behaviour, proper procedure, not a single nerve end. He has got no sense of the restraints you need to make this work. If a bit of it annoys him or gets in his way, he tries to cast it aside, like proroguing parliament, like the Standards Committee”.

But it goes much deeper, I say, than a PM who could not give a damn; it also involves a Government which deceive about their policies. If noble Lords have a moment, read the evidence of the noble Lord, Lord Pickles, before the Grenfell Tower inquiry, where he chides counsel for the inquiry for suggesting that the way we discover what the Government were doing was to look at the press releases of the Government at the time. These describe a policy of “two regulations out, one in”, which they used to reduce fire regulations. The noble Lord criticised Mr Richard Millett QC, for suggesting to him that one should view that as an indication of what the Government stood for.

Priti Patel is currently doing Rwanda. She previously suggested she had a policy of push-back: asylum seekers were being pushed back in small boats. Court proceedings were begun. The courts insisted on getting a copy of the policy in writing. The Government said, “No—public interest immunity: you cannot have it.” The courts rightly swept that aside. When the document was produced, it was revealed that the policy was explicitly not to apply to asylum seekers. It is wrong that we need the courts in order to discover what is going on in the Government. Part of this trend is the determination to reduce the basic rights of the citizens, their civil rights.

The gracious Speech, as many have said, refers to restoring

“the balance of power between the legislature and the courts by introducing a Bill of Rights.”—[Official Report, Commons, 10/5/22; col. 6.]

We know what this means, because it is set out in the consultation paper the Government have issued. The Government take issue with the idea that legislation should be construed, as far as possible, to be consistent with the Human Rights Act. They attack the notion that the framework documents for citizens’ rights should be living instruments that move with the times. They attack the notion that, for example, the law, through the European convention, was able to eradicate the idea that, if you were illegitimate, it was acceptable for the state to discriminate against you; that it was acceptable for corporal punishment, the birch, to be used as an answer to crime; or that, if you were gay, it was possible to discriminate against you. All those were put right by the idea of a law being able to move with the times. This Government want to ensure that only the Commons majority can determine where we should be, and that would be only on the basis of a dictatorship democracy.

I agree with the words of my illustrious predecessor, Lord Hailsham, in 1976, when he railed against an elective dictatorship:

“My object is continuity and evolution”—


and so is mine—

“not change for its own sake.”—

And so is mine—

“But my conviction remains that the best way of achieving continuity is by a thorough re-construction of the fabric of our historic mansion. It is no longer wind- or weather-proof. Nor are its foundations still secure.”

With respect, I agree that those words apply now.

--- Later in debate ---

[Lord Strathclyde (Con)]

My Lords, in her speech the noble Baroness, Lady Smith of Basildon, gave us the theme of the constitutional importance of the House of Lords, which is one of the things I wish to discuss today.

I listened carefully to the noble and learned Lord, Lord Falconer, who made a great speech. He prayed in aid Lord Hailsham of years ago and his “elective dictatorship”, and I recognised the speech, because it is one I have made many times—or at least a version of it. The noble Lord, Lord Wallace of Saltaire, prayed me in aid when he talked about my being involved in ping-pongs three or four times—not for many years now. Then the noble and learned Lord the Convenor of the Cross Benches himself talked about Henry VIII powers, skeleton Bills, rebalancing Parliament and the Executive and the constitutional importance of understanding that balance, and the complexity of legislation. Surely the noble and learned Lord is the inheritor of the late noble and learned Lord, Lord Simon of Glaisdale, who placed such importance on these issues. Who would disagree with the noble and learned Lord? I would not, and I suspect that most of the House would agree with him that some of these things need to change. The question is how to do it.

Occasionally, we need reminding that the Government have no majority in this House—and nor should they. The Government can be defeated here on virtually every Division. That adds a responsibility on us not to do that, but to pick our targets with care where there is support in the party in government in the House of Commons and where there is a chance that the Government might listen. On the other hand, here is how not to do it. In the last Session of Parliament, there were 129 government defeats. There were 12 in one night on the borders Bill and, on 17 January, 14 in a day on the police Bill. The previous record for that number of defeats was in 1975-76. Of the 12 government defeats on 4 April, the Cross Benches voted 61 against the Government, no doubt independently and not en bloc, as a pack or all together.

Increasingly, on Lords consideration of Commons amendments, which should be a small, short procedure, we instead hear noble Lords rather pompously say, “I think we should ask the Commons to think again, one more time”. Then away it goes, back down to the House of Commons, to be soundly defeated and returned here a few hours later, utterly pointlessly. Speeches are repeated at length. So much self-discipline has—

[Lord Falconer of Thoroton (Lab)]

We have heard this speech before.

[Lord Strathclyde (Con)]

Well, the noble and learned Lord has been repeating some of my speeches.

The more we defeat the Government because we can, the more the Government will ignore us and look at ways to stop us. It will not be the old debate on who should sit here. We tried that 25 years ago, with the Government who the noble and learned Lord, Lord Falconer, supported so much. It did not do us much good then and it will not do so now. Instead, this time, they will turn to what my noble friend Lord McNally used to call a wing-clipping exercise and look at our powers. It would be a terrible mistake and one that I would deprecate, but this is the route we are heading down: reducing the Parliament Act delays, limiting the times an amendment can be rejected or opposing a limit of a few weeks to return a Bill to the House of Commons, leading inevitably to guillotines in this House. We should never have this in the House, but this is exactly what will happen if we continue in the way we are.

It sometimes feels as if we have developed a kind of anarchy in the House of Lords—an incontinence of Divisions. I understand that, during the period of lockdown, it was too easy to just press a button from a deckchair in your garden, but this kind of thing needs to stop. We are at last returning to voting in the Division Lobbies, so if we had 13 Divisions in a day, we would not move out of the Lobbies very much at all.

We also need to remember that here in the Lords we do not represent anybody. We have no responsibility or accountability. We have the huge privilege of being legislators here, but we have not been elected. We have constitutional purpose; it is quite limited, but it is important. A lesson is that you can never win a general election from the House of Lords. We scrutinise, revise and debate the great issues of the day. Of course we can defeat the Government, and we should vehemently argue against them and oblige Ministers to come forward and explain what they are doing, but we must always remember that the House of Commons is elected and we are not.

The Government, for their part, need to improve the quality of legislation.