Queen's Speech

Lord Goodhart Excerpts

Thursday 27th May 2010 Lords Chamber

[Lord Goodhart]

My Lords, home, legal and constitutional affairs and local government provide enough material for several days of debate. We have heard very little about local government today, but as we have only eight minutes each we have to use our time carefully.

Therefore, I shall concentrate on one subject—civil liberties. I welcome the proposals in the coalition programme on civil liberties, including scrapping ID cards, extending the Freedom of Information Act, reviewing libel laws to protect freedom of speech, preventing the proliferation of new criminal offences, and other matters.

I also welcome the undertaking in that section of the coalition programme to set up,

“a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights”.

That clearly excludes the threat, which concerned me in the past, that new laws might be enacted which would restrict the power of the United Kingdom court to apply all the provisions of the ECHR. As the United Kingdom is bound by the ECHR as a member state of the Council of Europe, it would be absurd to restrict the power of our courts to apply the ECHR and leave litigants needing to take their case to the court in Strasbourg.

What should we add to the ECHR to make a British Bill of Rights? The most obvious addition is the right to jury trials for serious offences. That cannot be part of the ECHR because some countries do not have jury trials. That is an essential element of the United Kingdom's legal system and should be protected by its inclusion in the Bill of Rights. It should not be an unconditional and absolute protection, because there are exceptional circumstances in which serious offences may have to be tried without a jury. In Northern Ireland, some criminal trials could not safely be heard by juries during the Troubles, and the judge-only trials in Northern Ireland worked very well. In fact, they had some advantages for defendants over a jury trial because it was the duty of the judge to explain why he had reached a decision to convict, which was something that could be taken to the Court of Appeal. As recently happened in England, it may be necessary to have a judge-only trial where there is reason to believe that a jury will be tampered with or that previously a jury has been tampered with.

Moving beyond incorporating the right to a jury trial—or, perhaps even incorporating that right—may be difficult. Two years ago, I took part in a seminar organised by Justice about a British Bill of Rights. The seminar included lawyers from Scotland, Wales and Northern Ireland as well as England, and the general view held by those attending the seminar—I get the impression that this is a general view among the profession—is that a British Bill of Rights would not be acceptable unless it is approved by the devolved Assemblies as well as by Westminster. Of course, Scotland has always had its own laws and legal system, which differ considerably from the English law and legal system. As an example, the existing rights to jury trial differ significantly between England and Scotland. Some groups in Northern Ireland want to have a separate Bill of Rights for Northern Ireland on its own. Others in Northern Ireland no doubt disagree with that. Therefore, it would be doubtful if we could get a consensus in Northern Ireland for a British Bill of Rights. The question is: would the Bill be a British Bill of Rights in the strict sense—a Bill applying only to Great Britain—or a United Kingdom Bill of Rights?

There are also some gaps in the civil liberties section of the programme. It is a long-standing obligation under the European Convention of Human Rights to allow at least some prisoners to vote in elections. Understandably, that was not mentioned in the programme, but it is a hot potato that needs to be dealt with soon. I personally suggest as a simple solution that prisoners should have a vote if their sentence will expire within a period of not more than five years, so that they will have a vote in the election of MPs who will represent them when they emerge from prison.

Secondly, as my noble friend Lord Thomas of Gresford said, there is a need to look again at indeterminate sentences: so-called imprisonment for public protection. The indeterminate sentence has been a total and expensive failure, and it should simply be abolished.

Finally, on a different point, I hope that one element of spending cuts will be the cancellation of the building of new prisons. On prisons, I entirely agree with the views expressed by the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia. Since crime has diminished in recent years, we should reduce rather than increase the number of prisons. We all recognise that the Ministry of Justice will have to cut its spending, but it would be far better for it to do so by cutting the construction of new prisons, or not extending existing prisons, rather than by cutting legal aid, which is of enormous importance and has suffered severely in the past few years. It should suffer, if possible, no more.