King’s Speech

Lord Faulks Excerpts

Tuesday 23rd July 2024 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I will not talk about House of Lords reform—I think there will be plenty of time to discuss that. I want to talk about the question of constitutional reform more generally.

The gracious Speech is quite modest in its aspirations, but a new Government, particularly one with a huge majority, can make constitutional changes without too much difficulty. History shows that this is not always a good idea. The Fixed-term Parliaments Act was a mistake. Without it, we would not have had the unlawful prorogation of Parliament and the decision of the Supreme Court in the Gina Miller case. A decision to change our relationship with Europe would have commanded much more widespread support if it had required a two-thirds majority. No party even put down an amendment to the referendum Bill, even in your Lordships’ House, to that effect.

Following the landslide in 1997, the previous Labour Government brought in the Human Rights Act. Its implications were not properly scrutinised in White or Green Papers or by pre-legislative scrutiny. I and other part-time judges attended lectures from academics and practising lawyers. The message was that the Act would make little difference. In fact, it had huge implications for the distribution of power away from the Executive and into the hands of the judiciary—not that it was necessarily anxious to exercise such additional power. The attractive invitation to “bring rights home” disguised what was, in fact a significant subcontracting of the law to the European Court of Human Rights and an invitation to our courts to follow the Strasbourg jurisprudence, which was often inconsistent and not easily transferable.

The Labour Government soon found their own legislation thwarting their policy initiatives, particularly in relation to counterterrorism. It resulted in the then Home Secretary, the noble Lord, Lord Blunkett, disparaging judges. Sitting on a committee of your Lordships’ House, I heard three former Labour Home Secretaries say that they were so frustrated by the decisions of our courts that they thought they would seek the judges’ advice before drafting legislation to counter terrorism—an invitation that was refused.

In 14 years, the Conservatives huffed and puffed about the HRA and did nothing. Recent decisions of the European court in Strasbourg have included the unsatisfactory use of Rule 39 orders, which broke every principle of natural justice, and a major incursion into national environmental policies based on Article 8. I hasten to add that the British judge dissented. A low point for me was the Government’s arguments, in the dying days, as to the effect of A1P1 of the European Convention on Human Rights—which apparently prevented them from sufficiently penalising big tech for exercising monopoly powers because of their human rights. You can be passionately in favour of the protection of human rights and still consider that the HRA needs, at the very least, amendment.

On asylum, it is goodbye Rwanda, welcome border security command. We will see how that goes. The Home Secretary has said that she will approach the problem using a counterterrorism approach. She should bear in mind the experience of the last Labour Government. How will the reform of planning laws deal with the Article 8 arguments, and will tax reform run into difficulties with A1P1? We have a Government led by a human rights lawyer whom I greatly respect. Would he consider amending the HRA or is it now an article of faith? We heard from the noble Lord, Lord Pannick, that you cannot have too many lawyers. I would not go quite that far. Lawyers should not dominate the debate. We are legislating for the benefit of the population. It should not be judges who are making many of these decisions.

While speaking of human rights lawyers, I welcome the appointment of the new Attorney-General, the noble and learned Lord, Lord Hermer. We have been opponents only in the forensic sense in the past. On one occasion, I was opposed not only by the noble and learned Lord but by the Prime Minister. We lost 3-2 —is it any surprise? I am sure that he will give dispassionate advice to the Government without fear or favour. He may find problems with the elusive question of what international law actually provides in any situation and how we should respond, given that we have a dualist rather than a monist system. I am confident that his approach will reflect a lifelong respect for the rule of law but, echoing what the noble Lord, Lord Warner, said, what is the Government’s position on the non-binding advisory opinion of the ICJ in respect of the Israel-Palestine debate?

A number of issues will have to be seized in the future. I am confident that your Lordships’ House will continue to play a very important part.