Governance of Britain

– in the House of Lords at 12:26 pm on 25th October 2007.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 12:26 pm, 25th October 2007

My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Secretary of State for Justice in another place. The Statement is as follows:

"Mr Speaker, with permission, I should like to make a Statement about our programme of constitutional renewal. With this Statement, three consultation documents are being published. The first, jointly by my right honourable friends the Foreign and Defence Secretaries and me, is on parliamentary approval for war powers and treaties; the second, by me, is on judicial appointments; and the third, by my right honourable friend the Home Secretary, is on protests in Parliament Square. Copies of the documents are available in the Vote Office and on my department's website."In his Statement to the House on 3 July to launch the Green Paper, The Governance of Britain, my right honourable friend the Prime Minister set out his vision of a renewed relationship between government and citizen. He identified 12 areas in which,

'the Prime Minister and executive should surrender or limit their powers, the exclusive exercise of which by the Government should have no place in a modern democracy'.

"Two of the most important prerogative powers exercised by government are the power to deploy the Armed Forces overseas and the power to commit the nation to international legal obligations through the ratification of treaties. "I turn first to war powers. On 15 May, the Government supported a Motion in this House which declared that it was 'inconceivable' that the precedents set in 2002 and 2003, when the Government sought the approval of the House for military action in Iraq, would not be followed in the future. The same Motion called on the Government,

'to come forward with detailed proposals', on how this convention should be entrenched. Today's consultation paper therefore explores a range of options, each aimed at formalising Parliament's role. It suggests that this might be through a convention, through legislation, or by a combination of both."The consultation paper discusses the critical issues that any system would have to accommodate. It is essential that any new arrangement should not damage morale, hinder us in meeting our international commitments, or inhibit operational flexibility. Nor should it place members of our Armed Forces under any legal liability as a result of any new arrangement. The Government welcome views on how these objectives can best be achieved and on related questions. What is the role of the House of Lords? How should we define 'armed conflict' and 'armed forces'? What information ought to be supplied to Parliament and at what stage?"I turn now to the ratification of treaties. This is already subject to a parliamentary convention, introduced by the first Labour Government in 1924, known as the Ponsonby Rule. According to this and with certain exceptions, the Government must lay a treaty as a Command Paper before Parliament for a minimum of 21 sitting days prior to ratification. It is then for Parliament to determine which treaties it wishes to debate. The Government believe that there may be value in putting this convention on a statutory footing, to establish Parliament's right to decide and to show that the actions of the Government are subject to the will of the people's representatives."The paper seeks views on how this can best be done, including on the detailed and important questions of how exceptions to the existing convention, such as bilateral double taxation agreements, should be dealt with; how a debate and vote on a treaty should be triggered; and how the 21-day period could be extended in special circumstances."As Lord Chancellor, I am responsible for upholding and defending the independence of the judiciary, which is essential to the functioning of any free and democratic society. Our system of appointing judges must be, as I believe it is, wholly devoid of party politics. It must be transparent, accountable and capable of inspiring public confidence. Under the Constitutional Reform Act 2005, with the establishment of the Lord Chief Justice as the head of the judiciary, we have already made many significant reforms to the way in which judges are appointed in England and Wales. The most fundamental was the creation of an independent Judicial Appointments Commission. The consultation paper published today outlines possible options for additional reform, on which the Government would welcome views."The final consultation document published today concerns protest in Parliament Square. The framework in the Serious Organised Crime and Police Act 2005 in respect of protests raised concerns from campaigners, other citizens and, separately, from Members of this House. We need to listen to those concerns and review the provisions to see whether there is a better way to uphold the right to protest and manage individual protest appropriately. "Holding the Government to account for the way they spend public money is one of the most important functions of this House. I and my colleagues pay tribute to the work of the National Audit Office in supporting Parliament in this task. So the House will be pleased to know that, following a joint request from the Father of the House and the opposition chairman of the Public Accounts Committee, space will be made available in the constitutional reform Bill for any agreed changes to the governance of the National Audit Office emerging from the review that it has announced."It is right to consider the circumstances in which we open up more information for debate before this House. Even in the most sensitive sphere, national security, where everyone agrees that some safeguards have to be in place to respect confidentiality, we should always consider where we can do more. Starting next month, the Government will publish annually, for parliamentary debate and public scrutiny, our national security strategy, setting out for the British people the threats that we face and the objectives that we pursue. Additionally, new rules will govern a more open approach to the working of the Intelligence and Security Committee. My right honourable friend the Prime Minister has agreed with the chair of that committee that Parliament should have a clear role in the appointment of its members."In keeping with this Government's commitment to ensure that the public can access the information that they need, my right honourable friend the Prime Minister will be making a speech later today announcing that we will not tighten the charging arrangements for freedom of information requests. A consultation on whether to extend the Freedom of Information Act to a range of organisations that perform public functions and a review of the 30-year rule will be established."These days huge amounts of personal data are held by the public and private sectors. My right honourable friend the Prime Minister and I have asked the Information Commissioner, Richard Thomas, and Dr Mark Walport, director of the Wellcome Trust, to review the way we share and protect personal information in the public and private sectors. "The freedom of the media to investigate and report is a key issue in the use of information. We consulted last year on restricting media access to the coroners' courts and I can now confirm that we will not be limiting access. Proposals to ban media payments to criminals have been under consideration for some time. None of us wants to see criminals profiting from publishing books about their crimes and, while ensuring that the freedom of the press to investigate and report is maintained, we will make sure that criminals cannot benefit in that way."As provisions in the Criminal Justice and Immigration Bill make clear, we are also concerned about the misuse of personal data. However, the new rules raise concern that they could impede legitimate investigative journalism, so the Information Commissioner, in consultation with the Press Complaints Commission, will produce clear guidance to ensure that that is not impeded."There is often a lack of clarity in the balance between an individual's freedom and the role of the state. My right honourable friend the Home Secretary has been examining this issue in relation to existing police powers of entry, to consider whether there should be a single readily understandable code. The Home Secretary will widen the review in scope to include all powers of entry held by public authorities. The Home Secretary will also lead a consultative review considering whether improved guidance is needed for police officers in the exercise of Section 44 of the Terrorism Act 2000, ensuring that trust is preserved in the use of those powers."These consultation documents and these other measures are all in part concerned with the right to freedom of expression and its facilitation. It is a right specifically protected by the Human Rights Act, but it has existed in the UK for a very long time. Because of its fundamental importance in our democracy, I shall be considering how, as all future legislation is developed, it can be carefully audited for any explicit or unforeseen restriction that it might unnecessarily place on freedom of expression."These are important questions that go to the heart of the issue of where power should lie in our country and how it should be exercised. We now look forward to hearing the views of parliamentarians and citizens on how this can best be achieved in these vitally important areas".

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 12:35 pm, 25th October 2007

My Lords, I find myself in some difficulty in responding to the Statement. At about 11.40 am, while I was engaged in the debate on the Legal Services Bill, I was handed three documents, which, as I understand it, form the basis of the ministerial Statement. It is simply not possible to respond to substantial parts of the Statement without reading the documents first. I shall give the Minister one example. He suggested that the Government might be looking further at the issue of judicial independence and, at the end of the paragraph dealing with that matter, he stated:

"The consultation paper published today outlines possible options for additional reform, on which the Government would welcome views".

However, since I have not the faintest idea what those options are, it is not possible for me to respond in any constructive sense. Indeed, I find myself, being in total ignorance of the contents of these documents, at a loss to know how I should respond. Nevertheless, of course, I shall.

Noble Lords:

Ha!

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

Not for the first time, I shall talk about something that I know absolutely nothing about, my Lords.

The first issue that the Minister addressed was the decision-making power of Parliament to approve a declaration of war. The Statement rightly said that there was a long and constructive debate in your Lordships' House last May on this topic.

The difficulty that all Governments surely face on this issue is that they cannot be fully frank with Parliament. There is a whole range of intelligence information that is crucial to the decision whether or not to go to war that simply cannot be made public. Parliament will always be making a decision on trust. The issue about war-making decisions, therefore, is not actually Parliament's vote, although that is now a crucial component, but rather the confidence that Parliament can repose in the recommendation of the Government to go to war. That in turn depends on Parliament's confidence in the main actors in that decision: the Chiefs of Staff, the intelligence services and those ministries that have been involved in the build-up—in particular, the Ministry of Defence and the Foreign Office.

Those of your Lordships who have read the Hutton and Butler reports on the events leading up to the Iraq war will recall that many sharp criticisms were made of the process by which the Government took advice from all these agencies before making their final decision. I think that the expression used by Lord Butler encapsulated that process: "sofa government". It was quite plain that many of those important institutions were not consulted in a full and objective way. What we need to hear from the Government in future is not so much the claim that they will consult Parliament; we need to be sure, before we can make a proper decision, that the Government have consulted all those agencies properly and that the Statement on this issue to Parliament reflects their view.

On treaties, I am most unimpressed with what the Minister said about the Government's intentions. The crucial thing about treaties is not the ratification but the signing process. What Parliament needs is an opportunity to engage with the Government about the process of negotiating before a treaty is signed. A classic example of this was the signing by Mr David Blunkett, then Home Secretary—in secret in the United States, without even telling his Minister of State—of a treaty on extradition that gave away the individual rights of citizens in this country. That was a particularly disgraceful thing to do when individual constitutional rights were involved. What your Lordships' House ought to want to know is not what the Government are going to do about ratification but how they will engage Parliament in the process leading up to signature. Once a Government sign a treaty there is absolutely nothing that anybody can do about its contents; they are binding on the state under international law. So the Government have a great deal more thinking to do on the question of signing treaties.

As I said at the beginning, I have not the faintest idea what the Government are going to say about judicial appointments. It was only two years ago that the Government declared themselves completely satisfied with what they had put in the Constitutional Reform Act. They removed the responsibility for selecting judges from the Lord Chancellor, accountable to Parliament, to an entirely independent judicial appointments committee. I think that there were some merits in that, up to a point: the committee presents its conclusions to the Lord Chancellor, but the Lord Chancellor has almost no room for manoeuvre about whom he or she ultimately appoints.

Have we gone too far in the other direction? Do we have enough parliamentary accountability in making judicial appointments? In the United States, they have for senior judicial appointments an advise and consent procedure with the Senate. I have not yet met a Supreme Court judge who has not said that he values that process, because it in some way legitimises the enormously powerful role that he has under the American constitution.

As a result of the Human Rights Act and other measures in legislation—and particularly because of the weakness of the House of Commons in controlling the Government—judges are being more and more drawn, ineluctably, into political decision-making. They are certainly perceived as being drawn in more and more. If they are to be drawn into political decision-making through their decisions, surely there must be a case for giving their appointment parliamentary legitimacy. Do the Government in this document—which I have not yet read—propose that, or are they on an entirely different tack, which is nothing whatever to do with what I have just said? I do not know.

I was interested in the Minister's remarks on national security. This is a matter of great complexity and delicacy. I would like to know more about the proposals before I give an off-the-cuff response—and likewise on the question of media. There is simply not enough content here yet for me to make a sensible observation.

In closing, I was not surprised, although I was disturbed, to see that the Government intend to institute a programme of constitutional renewal. That sounds extraordinarily radical, and I invite the Minister to say a little more about it. No constitution is perfect; but, when one looks back on the past 300 years, I respectfully suggest that ours has done rather well if one compares it with almost everybody else's. Ours has been endorsed by every single generation since 1688 and, on the whole, not found wanting. So why does this generation and why do this Government suddenly decide that the constitution needs renewal? I suggest that they should look much more carefully at why we have the constitution that we have before embarking on yet another round of radical change.

Photo of Lord Tyler Lord Tyler Liberal Democrat 12:44 pm, 25th October 2007

My Lords, I have had just a few more minutes than the noble Lord, Lord Kingsland, to examine the Statement and the consultation documents. This is as much as anything a restatement in a number of important directions but, nevertheless, my noble friends and I welcome it.

To deal with easy matters first, we very warmly welcome the decision to review the rights of democratic protest. We always thought that it was ridiculous to include in the Serious Organised Crime and Police Act 2005 an attempt to try to control the rather messy experiences that we witness daily in the middle of Parliament Square. It was not an appropriate vehicle for dealing with the very proper right of the British citizen to protest in public and close to where we hope these decisions will still be made—in the Palace of Westminster.

We must examine the issue of judicial appointments with extreme care, for the reasons that the noble Lord, Lord Kingsland, has already advanced, because in our constitution we have a rather ineffective separation of powers. The noble Lord himself has probably gone all over the world advising new democracies on the necessity of keeping separate the judiciary from the legislature and Executive. Until quite recently we had here on the Woolsack someone who was a member of the Cabinet and therefore a part of the Executive, a member of the legislature as a Member of this House, but also the supreme head of the judiciary. That was quite extraordinary. So whatever methods we are going to adopt, we shall have to look at extremely carefully.

With any sort of confirmatory hearings, surely the real confirmatory hearings should be for those responsible to Parliament. New Secretaries of State should surely come before either Joint Committees or Select Committees of the other House.

As the Statement has made clear, there are 12 areas in which the royal prerogative could be re-examined—and only a few are dealt with in the process in front of us today. There is no reference to the dissolution of Parliament, which may in the light of recent events be rather more significant and urgent than the issues that are in the Statement. It would be extraordinary if the Government so lost their majority in the Commons that they could not carry the day on that issue—and, if they can carry the day, the only effect in terms of real change to the balance of power in this country would be a further restriction on the monarch, who in certain circumstances can potentially still have a view on that matter.

On the war-making powers and treaty ratification, we look forward to hearing the Government's proposals for your Lordships' House. We believe that in both cases there is a role for us in this place, as well as the other place; but we are very strongly in favour of placing the issue of treaty ratification on a statutory basis. We do not believe that an informal convention is sufficient.

In the Statement there is also a welcome change in the Government's attitude on the issue of requests for freedom of information. We very warmly welcome the decision to review that; we thought that it was anti-democratic that the charging regime should have been ratcheted up on the basis of previous proposals. We also welcome the decision to look again at how the resources of the National Audit Office could be made available to both Houses.

The future of the Human Rights Act is only very briefly mentioned at the end of the Statement but we understand that it will be the subject of a rather fuller explanation of the Government's policy from the Prime Minister outwith Parliament today. We believe that the Act needs strengthening, not weakening, and we shall examine that very carefully.

What are not in the Statement but are in the Green Paper are matters that we believe are equally urgent to those that are contained in it. Nothing more need be said about House of Lords reform at the moment—but one hopes that in the next couple of weeks we will hear more. The concordat referred to in TheGovernance of Britain Green Paper between central and local government is a really urgent issue and nothing has been said about it. Members of your Lordships' House will recall that on all sides and in all parties the relationship between central and local government is considered to be at a critical stage, and this concordat will be very important.

At the time of the Green Paper much reference was made to a proposed Speaker's Conference. What is the remit for that conference? What will be the representation in that conference, and what is the intended timescale? The noble Lord, Lord Kingsland, said that our constitution does not need renewing. These Benches believe that it certainly does, and for one very important reason. It is surely an absolute basic right of every British citizen to be confident that his or her vote is equal in value to that of every other citizen. Surely in a representative democracy that is a very basic citizen's right. Given that there is now wide recognition that three-quarters of the electorate have no impact on the outcome, and their vote is therefore wasted, when will Ministers release their internal departmental examination of voting systems? We have long been promised the report. It was referenced in the Green Paper in paragraph 156 that it was imminent and should be with us before the end of the year. The end of the year is coming very swiftly. When will the Government accept that this gross distortion at the heart of the democratic governance of Britain should at least be referred to the Speaker's Conference and to a general wider consultation among the public? Otherwise at the very heart of the Government's proposals there is an aching void.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 12:51 pm, 25th October 2007

My Lords, I am grateful to both noble Lords for their comments. Given that he was not able to read the documents, the noble Lord, Lord Kingsland, did very well indeed. I would have no hesitation hiring him as my lawyer if ever the need arose.

Of course, I understand that the documents that were released alongside the Statement are weighty and need and deserve great care and consideration by your Lordships, the other place and members of the public. We very much welcome the contribution of all noble Lords to the debate. These are very much consultation documents. Many of the recommendations are not firm; they are ideas, suggestions and options. I am sure that we shall all have an opportunity to debate them much more fully over the coming weeks and months.

The noble Lord, Lord Kingsland, referred to one of the most important papers in many ways—that concerning war powers. I agree with him that the provision of information to Parliament when it is called on to make such a weighty decision is absolutely critical. I accept that there will always be a balance to be drawn between the needs of security and sometimes diplomacy and the need to give as full information as possible to parliamentarians. Those matters are rehearsed—

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I shall respond to the Front Benches first and then we have 20 minutes for other noble Lords to make their points.

The consultation paper looks at the very issues that the noble Lord, Lord Kingsland, raises. It also suggests that an appropriate Joint Committee of both Houses might consider some of the more sensitive information. However, I have no hesitation in saying to him that this is a matter to which we must give very great attention.

The noble Lord, Lord Kingsland, made other extremely important points. As regards treaty ratification, often a long time may elapse between original discussions and actual ratification. It is important that parliamentarians are able to debate the principles at the beginning of the process as well as ratification of the treaty at the end. Ratification is very much at the end of the process. It has been the practice of successive Governments to make changes in domestic legislation to ensure that they comply with the treaty before the ratification process is brought to Parliament. My experience of treaties that I have been involved in relating to health and children is that there have been many opportunities for noble Lords and Members in the other place to debate these matters.

The noble Lord, Lord Kingsland, referred to judicial appointments and we again discussed the issue that we debated during proceedings on the Legal Services Bill. I echo what he said about the importance of the independence of the judiciary. The consultative paper presents a number of options for reducing the role of the Executive in the judicial appointments system; for example, the ability of the Lord Chancellor to reject a selection by the Judicial Appointments Commission could be reduced. The ability of the Lord Chancellor to require the Judicial Appointments Commission to reconsider could be reduced or removed. The Lord Chancellor's role could be reduced to a largely formal one, although he could question the process used by the Judicial Appointments Commission. There could be a complete surrender of the Executive's role with responsibility transferred to, for example, the Judicial Appointments Commission. Those are all options that will fall to be considered.

The noble Lord, Lord Kingsland, raised a very interesting point about the role of Parliament. In the consultative paper the Government say that they have serious doubts about pre-employment hearings as a way to identify the best candidates on merit. They are concerned about the risk of politicisation in that process. They have concerns about non-binding hearings before confirmation but after the appointments process for the same reason. They go on to say that some form of hearing might be more suitable for very senior judges, not in the context of what are described as post-appointment hearings but more to allow those senior judiciary appointments to discuss issues in relation to the administration of justice. I am very happy to take on board the comments of the noble Lord, Lord Kingsland, on this, and I am sure that he will want to contribute further.

I am grateful for the welcome that the noble Lord, Lord Tyler, gave to some aspects of the papers. He is right to stress that extreme care must be taken with judicial appointments. I hope that he will read the paper with great interest. I look forward to debating it with him. As regards confirmatory hearings, I am not sure that I completely agree with his remarks about a new Secretary of State, and I am not sure that I would want that extended to your Lordships' House for rather more junior Members of the Government. But clearly the Government have signalled that they are interested in the principle of hearings by appropriate Select Committees for certain very important public offices, and we will pursue that matter. I welcome his comments on freedom of information. Again, much effort will be made to engage noble Lords and Members of the other place in that matter.

As regards House of Lords reform, in the light of the vote taken by the House of Commons and the work of the joint group, my right honourable friend the Prime Minister said at the Labour Party conference that the next Labour Government manifesto—whenever that is produced—would contain a commitment to the principle of election. There is much to be discussed between now and then and I look forward to all noble Lords taking part in those discussions and informing the work of the joint group.

The new Local Government Bill, which your Lordships' House debated recently, and the concordat indicate that a much more grown-up relationship is developing between central and local government. The terms of reference and the timing for the Speaker's Conference are being discussed at the moment. I cannot tell noble Lords any more than that, but the details will be published shortly.

On the voting system report, I am still sticking to the end of the year; we have some way to go. As far as what the noble Lord called "representative democracy" is concerned—he meant proportional representation and the political fortunes of the Liberal Democrat party—I remain a first past the post-er. Again, certainly in relation to discussions on reform of your Lordships' House, I have no doubt that we will have every opportunity to discuss these matters very fully.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 1:00 pm, 25th October 2007

My Lords, can the Minister can confirm the answer that I believe I got on the previous occasion when we discussed one of these wide-ranging essays on the governance of Britain, that the Government have no plans to involve the House of Commons, or Parliament as a whole, in the appointment of judges?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I think that is a very fair point. Clearly, in The Governance of Britain the Government signalled their wish to look at areas where authority could be moved from the Executive to Parliament, but in relation to judicial appointments the paper is clear in pointing out the risks of politicisation of that process. That is why the paper is careful to look at the options and does not show itself to be in favour of confirmatory hearings, which would accord with the concerns of the noble and learned Lord. I am very much interested in his views, and I think I can reassure him.

Photo of Lord Renton of Mount Harry Lord Renton of Mount Harry Conservative

My Lords, I will refer to the point that I was going to make briefly earlier when the noble Lord, Lord Hunt, was speaking. I apologise if I was breaking the protocol of the House in interrupting him; I thought that I was in order.

I would like to strongly take up the point that my noble friend Lord Kingsland made not just on consulting Parliament in the case of going to war, but actually seeing that the right information comes to Parliament first. I remember very well—I will never forget it—the debate in the House of Commons on whether we should effectively go to war with Iraq without waiting for the second United Nations decision or approval on that. I sat upstairs listening to the Prime Minister's remarks. I was swayed by the statement that Saddam Hussein and Iraq had weapons of destruction that could be launched within 45 minutes and that would have a radius that certainly enabled them to hit Israel, and probably to go a lot further. Because of that information, I told a great many people who I saw afterwards that, having listened to it, I was persuaded totally by the case; but as it turned out later that information was totally wrong.

Like my noble friend Lord Kingsland, I have had no opportunity to read these documents; but surely the question of making certain that the right, fair and impartial information gets to Parliament before there is any question of declaring war is at the heart of the matter.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I, too, was present in the Gallery watching that debate, and the noble Lord will probably know that I resigned from the Government the next morning, so I am in some position to say to him that I very much agree with what he said. Clearly, in relation to these very serious decisions that Parliament is being called to make, it is important that Parliament has as much information as possible to make as wise a judgment as possible, commensurate with the need to balance the interests of Armed Forces, which may be in a vulnerable position, and more general security issues. I hope that when the noble Lord reads the consultative paper he will recognise that that matter is very much taken on board and will be subject to the consultation process.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, like my noble friend Lord Tyler, I was particularly grateful to the Government for their decision not to press ahead with the very unfair proposals to increase to a very large extent the fees for applications under the Freedom of Information Act. Will the Government go a bit further than that and introduce a review of the Act? At the time of enactment, there was a good deal of dissatisfaction with the Act. Many of us felt that the Act was by no means as good as it should have been or as good as the Government originally promised in the first discussion paper on the subject. In particular, I am concerned about such matters as the ministerial power to over-ride decisions of the Information Commissioner. There are other defects in the Act. Therefore, are the Government prepared to consider a full-scale review of the Act?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, first, I welcome the noble Lord's welcome of the Government's decision on fees. I make it clear that there was never any intention as a result of any change in the fees to hinder legitimate requests for information. In the Statement, and alongside it, we have announced that we are looking to extend the Act to organisations, particularly those bodies that have a relationship in one way or another with the public or with a public authority. I know that that will be warmly welcomed by many people. I cannot hold out hope for a fundamental review. The opportunity to extend the Act will be an opportunity for the Government and for all those who respond to the consultation to have an input into how we ought to take freedom of information forward in the future.

Photo of Lord Soley Lord Soley Labour

My Lords, I thank my noble friend for repeating the Statement, which is very welcome, not least because the British constitution has been so successful over the years because we adjust it to changing needs; that is one of its great strengths. First, on intergovernmental organisations and treaties, the difficulty will be—as I am sure the Government are aware—that you cannot amend a treaty on the Floor of either House once it has been signed, so the process whereby we do that is very important. There are other dangers, as we discovered over a recent extradition treaty when the United States could not fulfil its part of the bargain because it could not get what the President had approved through either the Congress or the Senate—I cannot remember which. That is another area where we have to be very careful.

On demonstrations, I readily acknowledge that the serious crime approach was the wrong approach. There is a point that has never been made as fully as it should have been on this issue. The Speaker of the House of Commons declares in each Session that exits and entrances to Parliament must be kept clear by the Metropolitan Police because of the recognition of the danger to democracy if people prevent their elected representatives getting into Parliament. That part of the equation has not received the publicity that it deserves.

Finally, on the appointment of judges, it is not just politicisation that is the danger of examination in public, although I am not totally opposed to that. The other danger—which has happened to some considerable degree in politics—is that people cease to put themselves forward for such posts if they believe that their private lives will be crawled over in a way that would be unacceptable for them, their families, friends and relatives. We have to be aware that it is not just a politicisation issue; it is about the publication of the detail of people's lives when they go into public positions of this type.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I will respond to the last point first, as it is very important. In general, we need to get the balance right. We do not want to inhibit good people from coming forward; equally we want to make sure that there is public confidence in the way in which those appointments are made. We will seek to get the balance right.

On the question of Parliament, the noble Lord put his finger on it. It is a very important principle that parliamentarians should have unfettered access to Parliament, as it is the right of our citizens to make protests. Getting that balance right is what was attempted in the Serious Organised Crime and Police Act 2005. There has been some comment that perhaps we did not get the balance exactly right and this is an opportunity to have another look.

On the question of treaties, I understand what my noble friend is saying but, as I said to the noble Lord, Lord Kingsland, there are opportunities to discuss and debate the work leading up to the signing of a treaty. Also, because it is our practice to change domestic legislation before ratification of a treaty, there are many opportunities for parliamentarians to take part in those debates. The consultation paper poses a number of questions about placing Ponsonby in statute, about whether we need more flexibility and about whether the 21-day limit should be extended. What should be the exceptions to the rule? What should be the parliamentary procedure for triggering debates? Noble Lords will know that the noble Lord, Lord Lester, has brought forward Bills on this matter, which will no doubt be a guide to thinking in this area. What would be the outcome of votes? There are a lot of interesting questions, on which we would welcome views.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, like many other Members of this House, I was a Member of the other place in 1972 when the European communities legislation was discussed. I well remember the wailing and gnashing of teeth on both sides of the House when it was discovered that the treaty was unamendable; not one syllable of it could have been changed. I appreciate that, in so far as public international law is concerned, no unilateral act by Britain can make a difference to that situation. We can change our domestic law and our domestic municipal arrangements. On the other hand, it is clear that the scope of creative involvement by both Houses of Parliament is extremely limited. You cannot, on the one hand, have Ministers who are plenipotentiaries—for that is what they are—eternally coming every day and night to Parliament asking for its consent. On the other hand, I agree that for there to be creative involvement for the sovereign will of Parliament there has to be something better than the present system, albeit on a limited plane.

What is the status of the three documents referred to in the Statement? Presumably they are not White Papers. Presumably they are not Green Papers—they are not tendered academically with a view to having a general and broad discussion. Am I right in thinking that they are Green Papers with whitish tinges, giving some indication of the direction in which the Government are looking at these various and crucial questions?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I thought that the noble Lord put the matter very well, as he often does, in relation to treaties and the balance between treaties being unamendable, whereby parliamentarians do not feel part of any scrutiny process, and micromanagement in the sense of Ministers having to report on a daily basis. I come back to the point to which the noble Lord referred, that because domestic legislation has to be changed there is ample opportunity at that stage for both Houses to undertake detailed scrutiny. It is certainly the practice that Ministers regularly communicate with appropriate Select Committees, whose work I pay tribute to. Equally, I accept the point made by the noble Lord on "creative involvement", as he put it. I am sure that in this debate we will want to consider that. I am a bit reluctant to describe the document as green or white. I would say that it is mainly green. There are some whitish areas, but it is a genuine consultation and, when the noble Lord has had an opportunity to read it, he will find that many options are put forward.

Photo of Lord Goodlad Lord Goodlad Conservative

My Lords, does the Minister recollect that in the report to the House on the Green Paper, published on 20 July, the committee expressed reservations about the lack of reference to the role of the House of Lords in decisions about deployment of the Armed Forces overseas? The Lord Chancellor said in his evidence to the Select Committee yesterday afternoon, which the Minister may have watched on television, that it was his view that the House of Lords should debate the matter before the House of Commons. Can he confirm that that is the Government's position and that it will have more consistency than the announcements of the previous Lord Chancellor on this subject proved to have? Will he also confirm that this House and the judiciary will be consulted on all the matters in the Statement?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, clearly we would very much welcome the contribution of the judiciary and Members of your Lordships' House in commenting on the details in the consultation documents. The noble Lord is right about what my right honourable friend said yesterday. The position of the House of Lords is set out in a number of areas in these documents and the Government recognise that the House of Lords has an important role to play, albeit within the context of Commons primacy. On war powers, my right honourable friend was suggesting—and the paper refers to this—that there might be a mechanism whereby the House of Commons would normally, where appropriate, allow some time for this House to debate a question, perhaps on a take-note Motion, before the Commons voted on it. That would be entirely consistent with our role as an advising and revising Chamber.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs

My Lords, I welcome the Minister's Statement on protests in Parliament Square. He will remember that this year I brought from these Benches a Private Member's Bill to discuss this issue. While I fully accept that access to Parliament is essential, I am sure that he will accept that in 20005 SOCPA completely changed the spirit of the protest. Will he assure me that in future it will not be necessary to get police permission for someone to demonstrate on Parliament Square when they are not blocking the roads or marching but simply standing there with a banner? Or is it the Government's intention merely to tweak the existing provisions?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, that will depend on the results of the consultation and I very much welcome the noble Baroness's input into it. Noble Lords may be interested to know that between 1 August 2005 and December 2006 there were 17 convictions and one caution as a result of transgressions against the Act. However, 1,379 demonstrations with authorisation took place, with very few conditions imposed.

P

Is the noble lord suggesting that if there had been more arrests then the case for changing this law would have been stronger?

Submitted by Peter Steadman

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, in my understanding, one of the essential qualities of our democracy has been the integrity of the voting process. I confess to having been completely shattered by the result announced by the independent commission appointed to look into the situation regarding the Scottish elections last May. I would have thought that this was a constitutional renewal point most urgently needing the attention of the Government. It does not seem to be covered in any of these papers, green, white or mixed. I should have thought it absolutely essential that this be looked at very quickly and thoroughly in order that this kind of doubt is not cast on the integrity of the voting system in any future election for either the United Kingdom or any of the devolved Parliaments or Assemblies.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, the noble and learned Lord is right to suggest that the integrity of the voting system is critical to our democracy and to the public's confidence in our democratic institutions. I assure him that all questions in relation to that and to electoral administration are being fully considered. The noble Lord, Lord Tyler, has already referred to the review, which will be published at the end of the year. Of course, we have not yet seen the terms of reference of the Speaker's Conference but it is entirely possible that it will wish to look at issues of electoral administration.