My Lords, first of all I must apologise to your Lordships for addressing you in the grip of a terrible cold. I hope that it will at least influence the amount of time that I remain on my feet.
The occasion opened this afternoon with a characteristically emollient speech by the noble Baroness, Lady Scotland, and was adorned by two excellent maidens by the noble Lord, Lord Gould, and the noble Baroness, Lady Prosser. I greatly look forward to hearing much more from both of your Lordships.
There was even a momentary outbreak of harmonious agreement between these Benches behind me and the Government when my noble friend Lord Newton of Braintree exhibited almost uncharacteristic enthusiasm in asking the Government to hurry up with the piece of legislation concerning the implementation of the Leggatt proposals. I hope that he limits his enthusiasm to that particular measure in future.
The Leggatt measure is a different sort of inquiries measure to the inquiries Bill that we shall be considering now in your Lordships' House. I have not had a chance to do more than glance at the Bill. However, I have one or two questions to warm the Minister up for her reply. Will the Bill have the effect of removing the prerogative of the Prime Minister to appoint inquiries? If not, will it limit his scope to do so? I ask the question for an obvious reason; because there has been much controversy recently about the appropriateness of appointing High Court judges to sit on inquiries that raise controversial political matters. Does this Bill say anything about that; or, if it does not on its face, can it be interpreted to say something about that?
Secondly, I notice that the Bill focuses on the power of Ministers to set up inquiries. Can a Minister set up an inquiry into the conduct of another Minister under the Bill? If so, how will that affect the doctrine of collective responsibility?
Thirdly, since I note its absence, will the Minister consider the possibility of your Lordships' House conducting the kind of inquiries that are recognised in the Bill? In the common law jurisdiction across the Atlantic, the United States Senate characteristically conducts major public inquiries. I would suggest to the Minister that the fact that we have a large number of Cross-Bench Members here who are aligned to no political party ought to make your Lordships' House an extremely attractive forum for conducting certain sorts of public inquiry. We have two functions as a House: we scrutinise legislation, and we have the responsibility to control the executive. Our task of controlling the executive is done mainly through Question Time, which is engaging and sometimes effective but can hardly be said on every occasion to be thorough. What better way in which to advance our role in controlling the executive than to have a responsibility for the kind of public inquiry mentioned in this Bill? Those public inquiries are all about controlling executive action.
The task of dealing with Home Office Bills at the beginning of this debate fell to my noble friend Lady Anelay. As usual, she fulfilled it in the brilliant way to which all my noble friends and your Lordships' House have become accustomed. I shall touch on one or two Home Office points before saying something, very telegraphically, about constitutional matters.
Undoubtedly the first few years of the 21st century present us with two huge policing tasks—one international and the other national. The international task, as your Lordships are well aware, is the task of keeping international terrorism under control. It is probably the greatest policing challenge that this country has ever faced, characterised by men and women whose malign instinct is to destroy other societies rather than build up their own.
But there is also an important domestic challenge. If your Lordships think back to what our society was like 30 or 40 years ago, your Lordships will remember that it was, in very large measure, a self-regulating society. Values inculcated by families and schools gave individuals not only self-respect, but respect for other people. In vast tracts of conduct, for which police intervention is now vital—and the kind of orders which the Government have had to introduce are vital—30 or 40 years ago none of that state intervention was necessary. So we face a new problem. Liberal, with a small "l" of course, though I am, I recognise that the state has been given a challenge to which it will have to live up.
In meeting these two challenges, the state must be informed by two principles. The first is the principle of proportionality. It must do no more than is necessary to solve the problem posed. Secondly, as so eloquently put by the noble Baroness, Lady Kennedy, what we do must be in the great tradition of the common law. In the common law we have been handed down, from generation to generation, the finest set of operational instructions to guarantee liberty of any country in the world. If we are not careful, we shall throw all that away.
Curiously enough, one of the contradictions that we face has flowed from putting on our statute books the European Convention on Human Rights. I am not going to launch into an attack on the convention, because I always supported it. Although I opposed its incorporation into our law, I accept that it has resulted in much of value. But there is one area in which the incorporation of the convention is having a deleterious effect—on the rights of the defendant in criminal trials. Because the convention's jurisprudence is based largely on decisions by judges brought up in the inquisitorial system, it simply does not understand the presumption of innocence. Therefore, the jurisprudence of the European Court in Strasbourg does not reflect the presumption of innocence. Therefore, it is perfectly possible for the Government to certify Bills in criminal law which conform with the European Convention on Human Rights but which fall well below the standards of our own common law.
A classic illustration of that was the Government's decision to allow propensity evidence to be introduced into criminal trials in the Criminal Justice Act 2003. That is very relevant to our debate today. The first measures that will appear in your Lordships' House after we cease to debate the gracious Speech are two orders that define the scope within which courts will determine whether propensity evidence is allowed into a criminal trial.
I remain aghast at the Government's decision to make that change to our law. They asked the Law Commission to look at it. The Law Commission produced an opinion consistent with the jurisprudence of the past but the Government ignored it. The Government ignored everything that my noble friends, Members of the Liberal Democrat Benches and many Cross-Benchers said about the provisions. Above all, they ignored everything that the judges have said, from the most lowly of courts making decisions about crime, up to the summit of our system in your Lordships' House, where judges have consistently said that propensity evidence in a trial is no evidence at all.
The clause is on the statute book, and we will now be dealing with delegated legislation. However, we are entitled to give those draft measures the most intense scrutiny when they come before your Lordships. They are the straw in the wind. We must be most watchful with the cases that emerge from the courts to ensure that the judges allow propensity evidence in only the most flagrant cases.
My concerns lie not just in the area of propensity evidence. In Section 44 of the Terrorism Act 2000, wide powers are given to chief constables to exchange the general principle that a police officer can stop and search you only on reasonable suspicion with the principle of search for reasons of expediency. I entirely accept that there are certain circumstances in which that is entirely valid; but not in the way that it has often been used in, for example, the area of Greater London. There could be no better exhibition of that than the recent article from the Spectator quoted by the noble Lord, Lord Cobbold, about a young man who had been stopped and searched for no apparent reason. I do not subscribe to the Spectator. I read the article only because it was drawn to my attention; and I have what was said in it as the only record of fact. But if only a modest proportion of what was said in the article is right, it gives rise to great concern about erosion of the principle of arrest only on reasonable suspicion.
"we do not want to fight terrorism by destroying precisely those things terrorism is trying to take away from us.
Open, liberal democracies fail if they try to protect themselves by becoming illiberal, closed and repressive".
There is, indeed, a temptation to use the threat of terrorism to change the rules in other areas of law to make it easier for the Government and the police to achieve their result in those areas than it otherwise would be. That is a temptation that must be robustly resisted.
The worst example of that tendency in recent times is the EU arrest warrant—absolutely justified in the aftermath of 9/11 in relation to terrorism, but totally unjustified in relation to every other offence. One can now be extradited from this country to another signatory state to the warrant, even though that state does not recognise even the standards of criminal law contained in the European Convention on Human Rights. No check can be made by a judge in this country. That is not the sort of legislation that we would like repeated.
Noble Lords are well aware of what my noble friend Lady Anelay said about the Identity Cards Bill. It is absolutely critical that it must not fall into the same trap as the arrest warrant Bill or a number of others where the requirements were ill defined and unspecified and, equally, the implications of that ill definition were not spelt out. If we do not have a clear understanding of why we are to have an identity card, what specific purpose it is to achieve and what information will flow from an inspection of it, the notion that individuals have rights that they are capable of protecting against police will be no longer worthy of mention in our system of criminal law.
The Government must be vigilant to ensure that everything that they do under their new legislation is proportionate. Glancing at another Bill, I am not filled with great hope that it will be. We support the so-called Serious Organised Crime and Police Bill, but we note that it will make all offences, of whatever nature, arrestable. Why on earth is that necessary? Why cannot we stick to the old system under the PACE Act 1984? What is the logic? It seems wholly disproportionate.
There is a link between all this and the constitutional issue; it is very simple and I shall spend two minutes on it in concluding.
The disproportionate approach is taken by the Government because there is an imbalance in the Cabinet between the forces of order and the forces of justice. The forces of order in the Cabinet are too strong; the forces of justice in the Cabinet are too weak. One principal reason for that is that we do not have a Lord Chancellor in the Cabinet. It is true that the noble and learned Lord, Lord Falconer, has "Lord Chancellor" tagged on the end of his title; but he is not sitting in the Cabinet at the moment as Lord Chancellor. He is sitting there as a junior Secretary of State with responsibility for constitutional affairs. In relation to the great men in the Cabinet, particularly the Home Secretary, he has very little influence to ensure that criminal legislation properly reflects both the requirements of order and the interests of justice.
I earnestly hope that, when the Constitutional Reform Bill is completed and the noble and learned Lord is returned to the Cabinet as Lord Chancellor alone, with all the dignities, precedents and powers that that great office has held throughout the centuries, we will see an immediate change in the balance of order and justice.
If we do not, I will conclude that something even more radical will have to be done in the upper echelons of our politics; namely, to make sure that people who make the kind of rules to ensure order in our society do not at the same time determine the rules of criminal evidence. That is a step too far at the moment for many of your Lordships, but it may be a step that we have to take sooner rather than later.