Queen’s Speech

Lord Marks of Henley-on-Thames Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating the noble Lord, Lord Dunlop, on his maiden speech and in welcoming him, on behalf of these Benches, to his new position.

I start with two general observations on justice issues. Others on these Benches will speak on devolution and constitutional issues. First, I hope that this Government, now untrammelled by the constraints of coalition with my party, will nevertheless continue to test all their proposals against the fundamental values of human rights and liberty that have, in the past, been championed by both our parties. Secondly, I hope that this Government will maintain a commitment to the rule of law in its widest sense—embracing the concepts that government may not act unlawfully without challenge, that all citizens must have genuine access to justice and that our Government must faithfully abide by all their international obligations. These concepts are easy to state and all too easy for Governments to affirm, but they can nevertheless be challenging for Governments to achieve in practice.

It is against those benchmarks that I approach this Queen’s Speech. In the justice area there are several proposals which are to be welcomed. I will mention just four. First, the proposed policing and criminal justice Bill promises that 17 year-olds will be treated as children under all the provisions of the Police and Criminal Evidence Act, bringing English law into line with the UN Convention on the Rights of the Child and the European Convention on Human Rights, and in particular ensuring that 17 year-olds have a legal right to be interviewed in the presence of an appropriate adult.

Secondly, the Government’s proposed amendments to the Mental Health Act should end the scandal of patients, often children, who are suffering from serious mental illness being locked up in police custody for want of appropriate places of safety. But if the legislation is to work, the Government must ensure that there are always safe mental health facilities available for emergency admissions, and that these are convenient for patients’ homes and families. The Government claim to be serious about giving parity of esteem to mental and physical health. This will be an early test of their resolve.

Thirdly, the proposed end to indefinite pre-charge bail is long overdue and the Government’s proposals seem proportionate and humane. The sword of Damocles approach to criminal process is wrong. No one should ever be on police bail indefinitely without charge and without even knowing whether or not they are to be charged.

Fourthly, the Government’s promise to continue the reform of the criminal justice system is welcome—if it can be delivered. This means implementing the Leveson review’s recent proposals and providing the resources to make them work. But they cannot work if criminal lawyers are demoralised and angry. The previous Lord Chancellor left office with both sides of the profession convinced that a non-lawyer could never do the job of Lord Chancellor. That leaves Mr Gove, as a non-lawyer, with a serious challenge and he will meet it only if he carries the professions with him.

He might start by announcing a full review of criminal legal aid to ensure that the system will sustain a high-quality service that will command public confidence and deliver increased efficiency. For savings in criminal legal aid, he should look first at compulsory legal expenses insurance to cover criminal defence costs for directors of larger companies. He should also ensure that wealthy defendants can use restrained assets to pay their legal costs—a move inexplicably opposed in the previous Parliament by the Home Secretary. These two measures would release substantial sums spent on legal aid in very high-cost cases. In 2013—a relatively low-cost year—they were still less than 1% of the workload but accounted for more than 10% of the costs. The Lord Chancellor should also announce an immediate review of the changes to civil legal aid to see how far they have damaged access to justice and how best to undo such damage.

Like the noble and learned Lord, Lord Falconer, my chief concern for this Parliament is the future of the Human Rights Act and our membership of the European Convention on Human Rights. It is a great relief that the immediate threat to repeal the Human Rights Act has been replaced by a more measured approach but the threat remains. We have been reminded many times that the convention was fostered by Winston Churchill. One of its principal draftsmen was the Conservative lawyer David Maxwell Fyfe—later, as Lord Kilmuir, Lord Chancellor—who was Attorney-General in the wartime coalition and then won distinction for his cross-examination of Hermann Goering at Nuremberg.

The joint commission established by the coalition Government recommended by a majority that there should be a UK Bill of Rights, which would incorporate and build on convention rights, with possibly some additional rights guaranteed. Attractive possibilities for additional rights would include incorporating the UN Convention on the Rights of the Child and establishing a series of guaranteed digital rights with strong but appropriate protections for online privacy. The commission majority believed that such a Bill would be more in sympathy with British legal traditions and might gain wider public acceptance than the Human Rights Act.

If that is what ultimately comes before Parliament, I would not in principle oppose it, provided that three conditions were met: first, that the UK would remain a member of the convention; secondly, that convention rights would still be justiciable in British courts; and thirdly that the British Government would still regard themselves as bound to comply with decisions of the Strasbourg court. On this last issue, there has been much muddled talk. Article 46.1 of the convention provides:

“The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”.

It follows that we cannot cut the link between the UK and the Strasbourg court without leaving the convention, and that is a course with which I would vehemently disagree. I believe that leaving the convention would set a dreadful precedent for other countries and would undermine the moral case we make for human rights internationally. I note that the Prime Minister appears to be reconsidering the Government’s position on the convention. He may be reflecting on the obvious damage to his current difficult negotiations with other EU member states that our threatening to withdraw from the convention would cause. But above all, I believe that we need a commitment to human rights that is anchored in international obligation, which requires respect and compliance from our Government, not just from a possible illiberal future Government but now, from this and all future Governments, of whatever political colour or colours.

I mentioned the welcome proposal to ensure that 17 year-olds are treated as children in the criminal justice system. This reform is a response to the English High Court judgment in the case of HC, in which Lord Justice Moses said:

“It is difficult to imagine a more striking case where the rights of both child and parent under Article 8 are engaged than when a child is in custody on suspicion of committing a serious offence and needs help from someone with whom he is familiar and whom he trusts, in redressing the imbalance between child and authority”.

The court found against the Secretary of State on Article 8, the right to family life. We should remember that most cases under the Human Rights Act are decided in British courts by British judges, not by the court in Strasbourg. However, if we had only a British Bill of Rights, the Secretary of State might persuade the Government that the cost of treating 17 year-olds as children, which she assessed as £19-odd million a year, would justify the Government in derogating from the purely British Bill of Rights, which Parliament, at the behest of a majority government, could do. It is our membership of the convention and the fact that the Strasbourg court is there in the background that gives our citizens an international guarantee. I, for one, am not prepared to lose it.

On the more general question of the British Bill of Rights, I found persuasive the arguments of the noble Baroness, Lady Kennedy of The Shaws, and Professor Philippe Sands, who were the minority members on the Commission, that a constitutional convention would be the best forum for discussing the future of human rights legislation in the UK before legislation were enacted. They were particularly influenced by the issues raised by devolution; so should we be. The convention is embedded in the Good Friday agreement. It is incorporated into the devolution settlement with Scotland, and Scotland wants to keep it that way. To interfere with it without Scottish consent would add to the threat to the union, and we should tread with great care. In Wales, the Commission recorded a general view of satisfaction with the Human Rights Act and convention system and the general view that human rights changes ought to be matters for the devolved Governments. Indeed, that issue has not really been resolved at any stage.

The Government have now signalled caution. A constitutional convention would combine caution with the best prospect of consensus and legislation that would command widespread respect. Consensus and widespread respect should be prerequisites for legislation in this crucial but extremely complex area.