Terrorist Offenders (Restriction of Early Release) Bill

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, we are being required to legislate urgently to remedy an emergency created, at least in part, by overcomplicated sentencing law. I deeply regret the rush, and my support for the Bill —I do support it—is predicated on the premise that, before long, we shall be taking an entire look at the whole spectrum of sentencing: how it operates, how it is legislated for and how it will work. However, as I emphasise, I should prefer specific problems with sentencing to be considered in the context of time and measured reflection. We do not have that time; I am satisfied that recent events have shown that we are facing a real threat of catastrophic damage to public safety, not excluding multiple murders, by individuals who have been convicted and who, even as they strike, are still subject to prison sentences for terrorist-related offences. In my opinion, although this legislation does no more than postpone release dates—which will come and will have to be addressed, and we are not addressing that issue—and, even if we had the time to work towards a better solution to this very real problem, the interests of public safety must come first, particularly in the context of retrospectivity and the expectations of convicted criminals.

I want to put the issue of retrospectivity into some sort of context. There is no right of a convicted criminal to be released after he or she has served the prescribed part of their sentence; it is only lawyerly talk, but the Acts of Parliament that deal with this refer to a “duty” on the Secretary of State to release the prisoner on licence after he or she has completed the defined proportion. The release date itself has absolutely nothing to do with good behaviour or earning remission. It is automatic and time-based. The proposed legislation is retrospective but, to put it in context, it does nothing to remove anything that the criminal personally has earned.

It will not help the House if I try to sort out the differences between—wait for it—the extended determinate sentence, the standard determinate sentence, the sentence for an offender of particular concern, extended sentences, minimum terms of imprisonment and so on. There is a whole cacophony of this sort of language. What matters is the complexity that results. Some prisoners are released after half their sentence; some are released after half their sentence, provided the Parole Board has had a look at the case and recommends it. Some prisoners are released after two-thirds of their sentence, and some do not get released until the minimum term has been completed. There is no axiomatic period that works in relation to release and nothing sacrosanct about a half-time release. The legislation has come and gone, and gone and come, covering these sorts of issues.

Those released are released on licence. Their sentence is not completed until the full period of that sentence has elapsed. So, under the present legislation, release is more or less automatic, depending on which category it comes under, but it is conditional. Among other features worth underlining are the responsibilities of the Parole Board, the way periods of remand spent in custody should be credited against the sentence, the power to release early—even earlier than the statute requires, for example, on compassionate grounds—curfews and the nature and terms of licence conditions for individual prisoners, which have always been regarded as administrative responsibilities. They are administrative responsibilities to be carried out by the Secretary of State; they are not judicial decisions, and no reference is made to the sentencing judge about how those responsibilities should be exercised.

In the meantime, the sentence of the court remains in force and, as I said, there are a number of different restrictions. It is possible—we cannot afford it, but as a matter of law it is possible—to impose what used to be called control orders and are now called TPIMs. I had to remind myself that they are terrorism prevention and investigation measures, which may be imposed on a prisoner at liberty under licence. For an unconvicted person, those conditions are usually regarded, rightly, as a massive interference with their ordinary civil liberties. Can we be clear that the liberty of a prisoner released under the statutes is not the same liberty that we enjoy as we walk up and down the streets? More importantly—or no less importantly—that licence may be revoked by the Secretary of State. The offender may then be recalled to prison without a further trial to serve the rest of the sentence.

Of course, the Secretary of State cannot whimsically disapply the relevant statute because he does not like someone, and, of course, the criminal will expect to be released. Since 2012 the sentencing judge has been required to tell the prisoner that the sentence is X, which means he will serve Y, and so on. By the time the prisoner has been in prison for, say, three days, five days or a week, he or she will have been told the expected date of release. That is the retrospectivity concern. It is a serious issue that I do not dismiss, but we have to put it in a context that I have endeavoured to describe. What I find completely extraordinary is that, although rightly, the Secretary of State may revoke the prisoner’s licence and recall him to prison for breach of any licence conditions, and may—if not, why not?—do so if his behaviour while on licence gives rise to a reasonable suspicion that he is engaging in activity that represents a threat to public safety, the duty to release once the requisite custody has expired appears in practice to be absolute, or at least seems in practice to be treated as though it were. Can that be correct? If so, is it not obviously wrong—indeed, absurd—that if the deradicalisation process for an individual convicted of terrorist offences has plainly not had the desired effect, it is nevertheless the duty of the Secretary of State to release him?

I shall illustrate what I mean. In relation to the Streatham attack, we have been told that the perpetrator was subject to close police scrutiny, as I understand it, immediately or almost immediately after his release, presumably because he was believed—rightly, as it turned out—to pose a serious risk. There may have been many reasons why he was not recalled to custody. One may have been that his release had been so recent that it could have been argued on his behalf that the Secretary of State had failed to comply with the duty to release. To the extent that the answer does not compromise intelligence or create any embarrassment to anybody, the simple question is: if the Secretary of State was lawfully entitled not to release him, why was he released? If she was not entitled, given all the evidence we now know, why on earth not?

The legislation is complex and difficult. I have nothing to say about it that suggests that I am entirely happy with it, but we have to look at recent disasters, which have provided disquieting evidence that the deradicalisation processes in prison have been far from successful and that convicted terrorists, still subject to the sentence imposed by the court, have immediately resumed terrorist attacks while on licence. There is an immediate danger; we have to address it. I support the Bill.

[Lord Soley (Lab)]

My Lords, I will speak briefly on the question not of law—which I shall leave to others who have more knowledge than I have—but of dangerousness. I have dealt with this quite a bit, albeit 40-odd years ago when I dealt with an awful lot of serious offenders and dangerous people. At times I got predictions right and at times wrong, but the important point is that we need to look at—

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Judge Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, this process has been moving at a speed that would attract the unrestrained admiration of an indolent sloth—and an indolent sloth has no interest in the administration of justice in England and Wales.

As the Minister set out, this process began in 2014. In fact, even before that judges had been trying to persuade the ministry to let a code be created. The final report on the draft code became available in November 2018. As the Minister has said, it has been a work of astonishing complexity—a prodigious effort by the Law Commission, led for this work by Professor David Ormerod. Unsurprisingly, it has been greeted enthusiastically, rightly, by anyone with any real experience of the problems, not of sentencing decisions as such—although any judge who passes sentence will tell you that those decisions are difficult enough—but of sentencing technicalities; statutory pitfalls; optimistically drafted regulations; regulations that are drafted, come into force and disappear after three or four months; and, with no disrespect to Parliament, general parliamentary tinkering with the sentencing processes. This has resulted in a morass of confusion.

Every Government, of all colours, going back years, have added their own ingredients and then left it to the courts to sort out the puzzle. Sentencing decision is, however, not a game. Every single case involves a defendant, and from time to time people forget that every case involves a victim. The sentence matters to the victim, too, and it should be right. In every sentencing decision—of which there are tens of thousands every year—the first question is: “What are the powers of the court?” The second question that should be asked is: “What are the legislative requirements and constraints that apply to this case?” The decision of the court should always be lawful, but too often, because the relevant law is obscured by technicalities and legislative confusion, it is not. This is unacceptable, it is inconsistent with the rule of law and it has been besmirching our system for years. A remedy is urgently needed and this sentencing code, the Bill and the processes that we are now reviewing will provide the desperately needed remedy—not because it is needed by lawyers but because there are daily miscarriages of justice. It is a miscarriage of justice for a court to pass a sentence that is unlawful. Those miscarriages result directly from the chronic state of our legislation.

I will make two further points. First, the code and Bill simultaneously avoid any retrospective increase in sentencing: the date of the commission of the offence is the starting point for the sentence. Secondly, it provides for a degree of flexibility, so that as new legislation creates further crimes—as happens constantly —it can all be worked into the code, so that we do not have to come back in 10 years’ time and say, “Ten years have gone by and we need another code”. We shall soon be looking at the counterterrorism Bill. That can be fitted into this code. If I were in charge—and I am not—I would get this done first and then look at the sentencing decisions which will arise when we consider that Bill.

The committee of the House which I had the honour to chair examined the proposed Bill and was enthusiastically in support of it. Members of that committee are here to speak, and those who for different reasons cannot be here have asked me to convey on their behalf their continuing support. What is surprising and disappointing is that the proposal has received the wholehearted support of Parliament, yet we have had to wait. I am not blaming anybody for this, but here is the fact: the Bill was introduced into this House on 22 May. It completed all its stages up to Report. It was ready to go, and it was lost when Parliament was prorogued. There were more significant consequences of the Prorogation of Parliament, but this was one of them. Then the process started in the next Session, and again the Bill was taken forward. Everything was in sight, the cup about to be grasped. A number of small amendments were introduced by the Government at that stage which were sensible, so that the Bill would be ready for enactment, but it was torpedoed by Dissolution—again, the Dissolution process had rather greater consequences than this.

Now we are here a third time. The amendments suggested by the Government again make good sense; they serve to improve the Bill. I did my own cross-check, but I ran out of energy just because we need a sentencing code. So I sought the advice of Professor Ormerod, who was able to assure me that he was prepared to give his blessing. If he had not, I would have complained—not to him but to the Government. A particular point to raise is that amendments should be commenced which, whenever possible, follow the “clean sweep” model and, again, reduce to extinction the risk of retrospectivity. A second is that any new legislation can be made compatible with the code. That, I earnestly urge should happen.

There is a solitary advantage in us having to address these issues again: it will give the House the opportunity to hear from my noble and learned friend Lady Hallett, who will be making her maiden speech. She is a very long-standing friend. There are many things that could be said, but I want to highlight this: she was the judge to whom I turned to conduct the harrowing inquest into the tragic consequences of the murderous terrorist attack in London in July 2005. We will all remember the transport disaster which resulted in so many deaths. I know her well enough; I have heard her say that she would be the first to extol the fortitude and courage of the families of the victims and the survivors who appeared before her at that inquest. But she will not say it, so I will. The sensitivity of her approach to each individual human tragedy encompassed in that long, sad catalogue of murder can, even at the risk of embarrassing her, be highlighted.

More to the present point, she was until a few months ago the vice-president of the Court of Appeal Criminal Division, much of whose work involves dealing with appeals against sentence which would have been quite unnecessary if the legislation had not been impenetrable and the proposed code in force.

This is the third time in a few months that this issue has been addressed. Even the journey of an indolent sloth eventually reaches a sluggish conclusion. Can we not have any more sloth-like behaviour? Can we have urgent attention so that, third time lucky, we will be quick?

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Judge Excerpts

Wednesday 22nd January 2020 Lords Chamber

The journalist sucked his pencil for a bit and said, “That’s all very well, but have you thought of the public expenditure that would be involved in putting all those windows into walls?” It is possible to lose the will to live; I did not, quite, at that stage. I have become a cracked record on this subject over the last few years. My noble and learned friend the Minister is an advanced thinker in these matters, not a dyed-in-the-wool, “chuck away the key” person. If the Government want to, and Parliament permits them to do so, they can extend sentences in this way, that way and the other. But, while they have their captive audience—literally—I urge them to do something with these people that makes them better citizens on their inevitable release.

[Lord Judge (CB)]

My Lords, I shall be very brief; following the remarks of the noble and learned Lord, Lord Garnier, there is not much more to be said. However, I wish to underline, first, that I very much hope that we will have a commitment today from the Minister that the Government do not intend to hold back on the enactment of a sentencing code. We have been through the whole of that process. It was cut short by the general election but it is an absolute imperative, as the Minister well knows and as anybody who has ever listened to the discussions on these issues fully understands. If we are to have changes to prison regimes, let them be done by amendments to an existing code rather than being introduced piecemeal and added on so that we are still looking through 17 volumes of laws to find out what the appropriate level of sentence might be.

My second point is much more general. The Minister’s introduction suggested—and it is perfectly obvious that it is right—that this is just the beginning. The Government are committed to a wholesale investigation of whether sentencing levels and dates for release are appropriate, and so on and so forth; this is a mere first step.

Speaking for myself, I find it alarming that we have started this process by secondary legislation. The issues raised, as the eloquent speech of the noble and learned Lord, Lord Garnier, made clear, are immensely significant to the entire way we run our punitive system in this country. Yet we are to have secondary legislation for this and, I suspect, a piecemeal series of secondary legislation as the Government’s thinking develops. A very good example—for once I am not looking at the Conservative side; this was Labour legislation—is the Criminal Justice Act 2003, which gave the Minister amazing powers to come to Parliament by way of a statutory instrument and effect enormous changes in our arrangements for prisons. Please, can we be more cautious about dishing out these powers?

[Lord Thomas of Gresford (LD)]

My Lords, the policy change to increase the release date of prisoners sentenced to more than seven years to two-thirds of the sentence has been brought forward far too quickly and without proper consideration. It is not evidenced-based. Before the election, the Lord Chancellor wound up the rhetoric and gave the reason for ensuring that the most serious violent and sexual offenders would face longer behind bars, as he put it, as restoring “public faith in sentencing”—sentiments that the noble and learned Lord, Lord Keen repeated. By contrast, the impact assessment attached to this statutory instrument says:

“Research into victims’ views on sentencing and time spent in custody is limited. However, a 2012 study found that victims of sexual offences (who will be more likely to be affected by this policy) were unclear on what the sentences handed down by the court meant in practice.”


There is no other study on which this change of policy is based and, as the noble Lord, Lord Ramsbotham, pointed out, there has been no public consultation. There have been only newspaper headlines in the popular press.

Before spending £440 million in construction costs and £70 million a year for 10,000 new prison places, as envisaged by the impact assessment, it would have been far better for the Government to take their time to form a proper evaluation of experience to date. In 2014 permission was granted for the Berwyn training prison to be built on the industrial estate of my home town, Wrexham. I know the area well; in my youth I worked on that very site as a member of a railway gang replacing wooden wartime sleepers with concrete ones. I learned how to use a pick and shovel, drink very sweet tea and place a bet—matters of great importance.

As I watched the buildings go up, to open in February 2017 at a cost of £250 million, I noted that it was the largest operational prison in the UK and the second largest in Europe. Here, I thought, was the opportunity, with modern design and facilities, really to do something to tackle attitudes, change people’s lives and turn prisoners away from crime. All rooms, as the cells are called, have integral sanitation, a shower cubicle, a PIN phone and a UniLink laptop terminal. It is designed to hold up to 2,106 prisoners serving four years or more. There have been criticisms. In particular Frances Crook, the chief executive of the Howard League, told the Welsh Affairs Committee, which reported on prison provision in Wales in April 2019, that it was built in a way that even Victorians would not build. She said:

“It is going to be the most disgusting prison in Europe within 10 years.”


She was concerned in particular that only 30% of the accommodation is single-cell, to save money, in flagrant disregard of the recommendations of the Mubarek inquiry into the murder of a young man by his racist cellmate.

As the prison was going up, a local rugby player, an experienced prison officer from a Merseyside prison, told me that, despite attractive offers, no regular trained officers would be attracted to work there. “It’ll be full of newbies,” he said. “You need to know who you’re dealing with, who’s standing next to you.” He was right: the report of the Welsh Affairs Committee revealed that 89% of the prison staff were in their first two years of training. The Prison Officers’ Association says that the recruitment pool in north Wales is exhausted and that

“we see very young inexperienced officers joining … with very few experienced staff to guide them.”

An inmate released last May told the Daily Post that

“it’s being run like a youth club.”

European Union (Withdrawal Agreement) Bill

Lord Judge Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, although I am one of the few legal Cross-Benchers who has not been Lord Chief Justice, I too want to say a few words in support of these amendments.

I wonder whether my noble friend Lady Deech has recognised the precise area that we are concerned with here, which is retained EU law: that is, decisions of the European Court of Justice pre the end of the transition period, not decisions to come thereafter which can merely be taken account of and do not bind. So we are concerned with the actual decisions taken before we finally part ways.

Under our system, it is normally for Parliament, of course—and to a very limited extent for Ministers, by secondary legislation—to legislate: to declare what the law is, almost invariably for the future. Only rarely do we give law retrospective effect. But in 1966, as I am sure we all know, the practice statement in the House of Lords said for the first time that we could depart from what has otherwise been the sacrosanct principle of stare decisis—of precedent in the interests of certainty and finality—subject to a rigorous test. It is a rarely used power, now transferred to the Supreme Court and indeed, by a decision that I wrote in 2007, to the Privy Council. In certain limited circumstances, the courts can depart from their previous decisions.

The sort of consideration or test is whether the earlier ruling is now judged to have been plainly wrong, and how long it has stood. If it is recent, that is one thing, but if it has stood for a long time there may be many who have acted in reliance on it. Let us not forget that when the court exercises this power it does so by declaring what the position is and always has been. It therefore applies retrospectively and leads to cases where those affected by it, although they may run into time difficulties, may need leave to appeal, or to bring proceedings, out of time. They may then say, “That is now established as the law and therefore we would like to invoke it.”

In the ordinary way, we only use this power where the individual case leads to manifest injustice or is contrary to public policy, or where the established line of authority unduly restricts the development of the law. In a very interesting and powerful piece in the Spectator last week, one of the excellent contributors to the Policy Exchange, Professor Richard Ekins, quarrels even with Section 6(4) and (5) of the 2018 Act, which already provide in effect for the Supreme Court, and in certain circumstances the High Court of Justiciary in Scotland, to have the same powers to reverse EU-retained case law; in other words, not to follow what they would otherwise need to follow, the already decided ECJ decisions, in the same way as they can not follow existing domestic law.

Professor Ekins suggests that that

“would introduce unnecessary legal doubt and improperly empower the Court to make new law.”

I see that point, of course, although I would not deprive the Supreme Court of this power. However, it strongly reinforces what he already said in the article in support in effect of Amendment 21: that it would be absurd for some lesser body as yet unknown, and I rather suspect not quite thought out, to decide who should, at a lower level, be authorised by ministerial regulation to depart from retained EU case law. That would indeed be a recipe for chaos, confusion and uncertainty.

As to the other main point, Professor Ekins wants all the power to change EU case law to be either the power of the Minister to promote by way of primary legislation—which of us would quarrel with that; it is plainly the correct approach?—or for the Minister by secondary legislation. That is where the real problem lies. If the proposed change of legal direction from earlier rulings of the ECJ involves obvious fresh policy choices, such as the sort of things instanced by my noble friend Lord Anderson, it will affect some already established important legal principle and is plainly an issue for Parliament by primary legislation. Secondary legislation could be appropriate here only if it is demonstrably necessary either to work cogently with some clearly established new post-Brexit situation or something of that character.

That said, I share Professor Ekins’s objection to involving individual judicial officeholders, however senior and distinguished, in the process of ministerial law-making. This again chimes with what my noble friend Lord Anderson said. I support both the amendments. Let the Supreme Court, as under the 2018 Act, have this rare power that will be seldom exercised, but mostly it should be for primary legislation to depart from well-established legal principles.

[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

[Lord Thomas of Cwmgiedd]

Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.

Queen’s Speech

Lord Judge Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Judge (CB)]

My Lords, I should have spoken to the noble Lord, Lord Tyler, before deciding what to speak about because he has said nearly everything that I wished to say, so I will not be very long. Your Lordships have heard me, and listened patiently to me, addressing the House about this misuse, this abuse, this failure to comply with constitutional conventions. As I spoke, I believed it and I still believe it. What has happened to Cabinet responsibility? Gone. What has happened to the confidentiality of Cabinet? What has happened to the constitution when the Minister for the Constitution is not a member of the Cabinet? What is happening and has happened with Henry VIII clauses now strewn like confetti at a happy wedding in the old days when, if I may say so to the Lords spiritual, the vicars did not mind if there were confetti on the path all the way back to and in the church?

When I read about the constitution, democracy and rights commission, I thought, “Hurrah! We’re going to address the problems. We’re going to address the misuse and the abuse. We’re going to try to make the Government more answerable to Parliament.” Then I thought, “Isn’t that funny? Democracy and rights are what constitutions are about. Why bother to have a commission into constitution, democracy and rights? Why add those words if your real concern is the constitution?” As the noble Lord, Lord Young, reminded us, the Prime Minister has told us in a briefing that the idea is to develop,

“proposals to restore trust in our institutions and in how our democracy operates.”

He has listed some of the many issues that have to be addressed. I suggest that the very first objective of any commission addressing the constitution should be to identify the misuses and abuses of it by both sides—by the coalition, too—in a practical way to establish and protect the constitution from further misuse and abuse and, in particular, to extinguish the misuse of unaccountable power by the Executive.

However, I could not dispel the suspicion that this is really all about the Prorogation decision of the Supreme Court.

[A noble Lord]

Absolutely.

[Lord Judge]

Well, why does somebody not say so? The answer is: it has been said, but it is not said in the Queen’s Speech, nor is it said in the briefing. Yes, it was an unprecedented decision, but then the situation was unprecedented. Let us just remember that if Parliament is prorogued, Parliament shuts up. There is nobody to challenge the Prorogation decision. This democratic process, an elected House, is told, “You cannot speak now on any issue, because I, the Prime Minister, have decided that there must be a Prorogation.” If the commission looks at this issue, it should not be worried about the powers of the Supreme Court; it should establish a clear understanding that Prorogation cannot happen without a vote in the House of Commons—certainly—and a vote by this House, too.

While the commission is looking at it, could it examine another element of the prerogative that has caused us all so much concern: the size of this House? What on earth is the point of that wonderful committee led by the noble Lord, Lord Burns, making all those recommendations of “two for one”, “one for two”, “swap this”? Very good, but the Prime Minister of the day retains an absolute prerogative power to appoint as many men and women to this Chamber as he or she thinks fit. It would be a good idea for the commission to look at that vice in our constitutional arrangements.

I have said as much as I want to say, save this. I support the idea of a royal commission into the criminal justice system, but if it is a royal commission, why does the constitution commission, addressing the beating political heart of the nation, not merit being one, too. What sort of unroyal commission is intended to address the constitution? If we are talking about trust, a commission established to give the Government the answers that they want will strike a mortal, further blow to the public’s confidence and trust in their own institutions, and the abuse and misuse will continue.