Debate on the Address

– in the House of Lords at 2:57 pm on 12th November 2007.

Alert me about debates like this

Debate resumed on the Motion moved on Tuesday 6 November by the Baroness Corston—namely, That an humble Address be presented to Her Majesty as follows:

"Most Gracious Sovereign—We, Your Majesty's most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave to thank Your Majesty for the most gracious Speech which Your Majesty has addressed to both Houses of Parliament".

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 3:06 pm, 12th November 2007

My Lords, I am delighted to be opening today's debate on Her Majesty's gracious Speech. Today we discuss the Government's proposals on home affairs, justice and constitutional affairs for this parliamentary Session. I am also delighted to be supported by my noble friend Lord Hunt of Kings Heath, who will wind-up today.

The measures announced will affect the lives of the British people in many ways. They include the Criminal Justice and Immigration Bill, the Counter-Terrorism Bill, the draft Citizenship and Immigration Bill, the draft Constitutional Renewal Bill and proposals on party finance and expenditure. My noble friend Lord Hunt of Kings Heath will deal with many of the issues on taking forward the Government's constitutional and criminal justice agenda when he speaks later. I hope that we can achieve consensus on the Constitutional Renewal Bill, to be published later this Session. It will ensure that Parliament has the final say over such fundamental decisions as the deployment of the Armed Forces overseas and the ratification of treaties.

In the mean time, I am happy to assure noble Lords that, through the measures outlined in Her Majesty's gracious Speech, the Government remain committed to reducing reoffending, protecting the public and increasing confidence in the justice system. This includes measures such as a commitment to providing enough prison places for those whom the courts determine should be there—which is why my noble friend Lord Carter of Coles, whose report is to be published before Christmas, has been conducting a review into the long-term supply and demand for prison places—and measures to ensure that the United Kingdom does not provide a safe haven for foreign criminals and terrorists. This will send a clear signal that such people cannot expect to secure settled status in this country.

I am sure that the House agrees that the first responsibility of Government is to ensure the security of the country and its citizens by tackling crime in our communities, addressing the threat of terrorism, strengthening our borders and protecting people's identity. In each of these areas the Government have made great progress but, as the measures in the gracious Speech make clear, we must continue to anticipate and respond to the changes that could weaken our security. These include the dangers of an increased terrorist threat, the challenges of global migration, and new and disturbing developments in criminal activity.

On crime, policing and anti-social behaviour, on immigration and identity, and on counter-terrorism, the Government have put protections in place for good reason. We will extend these protections through the measures announced in the gracious Speech. The ultimate aim of those protections is to support and amplify our freedom: the freedom for everyone to be able to get on with their lives as they want to live them in safety and within the law. They will provide protection for our families and our property, while upholding a society which values the right to equality and fairness under the law, with accompanying safeguards and accountability. These are powerful values to unite behind, as they are historic British values but also lie at the core of Islamic jurisprudence.

That we share those values should not be surprising, and consequently there is a shared interest in uniting against terrorism, which is a threat to those shared values. It is a threat that is serious and sustained, growing in complexity and growing in extent. As the Director-General of the Security Service set out in a speech last week, we are currently contending with about 30 plots and about 200 groupings or networks, totalling about 2,000 known individuals. Of course, we do not know everyone involved. So far this year, thanks to the police and intelligence services, 39 people have been convicted in 14 significant terrorism cases and 18 of those individuals pleaded guilty to their crime. According to the director-general,

"there remains a steady flow of new recruits to the extremist cause"; and he does not think,

"that this problem has yet reached its peak".

In bringing forward the Counter-Terrorism Bill, the Government will act with proportion and precaution to address the threats that we face as a country. Over the summer, the Government have consulted widely on possible measures for inclusion in legislation. There have been many useful meetings and many useful insights have been received from noble Lords, Members of the other place, law enforcement agencies and legal opinion, and, very importantly, from faith and community groups and those who represent the views of all our communities.

The Government believe that agreement can be secured on a package of further measures to tackle terrorism and to deal justly with those found guilty of terrorist offences. Those will include: to enhance the investigation of terrorists and their activities by ensuring that the police and the intelligence agencies can make full use of information and data; to strengthen prosecutions against terrorist suspects by allowing post-charge questioning; to improve public protection by strengthening arrangements for monitoring convicted terrorists after their release from prison; and to ensure that the police have sufficient time to charge terrorist suspects.

In the consultation and elsewhere, an argument has been set out that the time is now right to consider the extension of pre-charge detention beyond the current limit of 28 days. The president of the Association of Chief Police Officers has said that the proposals on this issue,

"will do much to bolster our ability to confront the threat. Importantly they seek to balance the liberty of suspects with the need for security and recognise that there may be occasions when 28 days will not be sufficient".

The noble Lord, Lord Carlile of Berriew, the independent reviewer of terrorist legislation has said that,

"there is a real risk that an extremely serious terrorism event could take place involving a large number of terrorists in which it would be difficult, if not beyond possible, to carry out all the necessary inquiries within a period of 28 days".

We also agree with his view that,

"nobody should be detained for an hour longer than is necessary. But also, nobody should be detained for an hour shorter than is necessary in the overall public interest".

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice

My Lords, I am most grateful to the Minister for giving way. He has spoken of his desire, and that of the Government, to have consensus on these matters. What steps has he taken in particular to gain consensus on the issue that he has been addressing about the duration of detention of suspects?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I will, if I may, cover those points as I go through the rest of my address. As I mentioned, the trend towards an increasing complexity of plots, an increasingly international range of terrorist activity, and an increasing amount of information that must be sifted and analysed means that we must consider whether we have the right protections in place. We have already made use of the full time allowed. Up to early July this year, six people in total have been held for between 27 and 28 days. Of those, three were charged with terrorist-related offences. In each of those cases, the CPS charged at the earliest opportunity once the evidence had emerged and the questioning was complete.

One can therefore say thank goodness that Parliament had legislated for the 28 days when it did. All three alleged terrorists would have had to have been released, with consequent risks to our people. It has always been recognised that these powers would be used only in exceptional circumstances, and so it has proved. It is worth noting that, since the maximum period was extended beyond 14 days, eight other people have been charged after being held beyond that 14th day. We believe that there is a case for going beyond 28 days in future, but again only in exceptional circumstances.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, how many extra days are needed? The Home Secretary seemed not to know on the wireless.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I was about to say that further work is needed. This is part of the consultation to decide exactly how many more days are required, which will be part of the work that will be done in the next weeks. We have set out options for how this could be done, and we are determined to approach the provisions in a spirit of genuine openness with noble Lords. Last week, draft clauses on key elements of the Bill were circulated to shadow spokesmen and to the chairmen of the Home Affairs Committee and the Joint Committee on Human Rights. The Government will try to be receptive to other proposals that they and noble Lords may wish to make, and my right honourable friend the Home Secretary will encourage direct access to officials on the detail of the proposals that we will place before the House. We will seek to build consensus wherever possible, but there should be no doubt about the Government's determination to act to address the grave and growing threat that terrorism poses to our safety and security. Similarly, I am convinced that this House intends no less, even if there may be disagreement on how to achieve that end.

We have said from the outset that we want a wide-ranging discussion on pre-charge detention. The Liberty paper on international comparisons is an interesting part of that process, and we will look carefully at what it says, but it is not of course straightforward to compare the situation in one country with that in another. Different legal systems and approaches need to be taken into account. We will, however, study the report very carefully.

I recently articulated my assessment that it would take a generation to excise the cancer of terrorism from our society, and I share the director-general's view that we need a long-term strategic plan to ensure success. That is exactly what we are putting into place. It is not the Government's intention to legislate in a rush or in the heat of the moment. Nor is it the Government's wish to be in the position where a terrorist suspect is held to the limit of existing provisions but released because there is insufficient time in which to build a case, and who then goes on to perpetrate a terrorist act. This is the dilemma that all honourable and noble Members must face. We have been within a hair's breadth of that happening three times, but for how much longer can we be lucky? If such a case arose, noble Lords, and particularly the general public, would rightly ask us why such an individual had been released, why we had not studied the trend, and why we had not acted to provide greater investigatory powers when we could do so.

I shall talk very briefly about immigration and asylum, with some linkage to what I have said about countering terrorism, particularly through our continuing work to make our borders more secure. By 2010, our e-borders programme will capture 95 per cent of all passenger movements into or out of the United Kingdom, increasing to 100 per cent by 2014. The data will be checked against watch lists, analysed, risk assessed and shared between UK border agencies. It will improve border security and assist in the fight against organised crime and illegal migration.

This House very recently gave consideration and approval to the UK Borders Act, legislation through which immigration officers now have new powers to protect the border and tackle immigration crime. This is the latest step in the Government's improvement of the Border and Immigration Agency, which will see the most far-reaching changes to the immigration system in the past 40 years. We are making sweeping changes to Britain's migration system and delivering a fair, firm and effective process for determining eligibility, processing applications and clamping down on abuse. From early next year, the points-based system will help us do that, working closely with the Migration Advisory Committee and the Migration Impacts Forum to give us the balanced analysis that we need on the skills gap which we have to fill and the impact of immigration on our public services. From next year, the biometric identity cards for foreign nationals working in the United Kingdom will be equally vital to the protections that we are putting in place.

Within this framework, the Government will continue to provide a haven for those in genuine need and continue to ensure that speedy decisions are taken. We will also simplify immigration legislation and establish a clear, consistent and coherent legal framework for the control of our borders and the management of migration.

This gracious Speech sets out provisions to deliver greater stability, security and opportunity for this country. The Government are committed to meeting the needs and aspirations of all their citizens through measures that will make direct improvements to their daily lives. Provisions on counter-terrorism, immigration, citizenship and crime form an important part of the gracious Speech. They offer critical underpinning and protection for our citizens and for the freedoms which they enjoy to go about their daily lives. I look forward to debating these and other issues with noble Lords in the months ahead.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 3:20 pm, 12th November 2007

My Lords, I am pleased to have this opportunity to follow the Minister in a debate on the humble Address. The gracious Speech contained several important proposals regarding counterterrorism and it is right that the Government should focus on the serious threat that this country faces. We have some reservations about the details of the proposals themselves, which I will come to, and I want at the outset to make clear that, on this side of the House and no doubt more widely, we agree that this country cannot fail in the effort to overcome the twin challenges of terrorism and extremism. The creation of my post as shadow Minister for Security with a seat in the shadow Cabinet is testimony to the seriousness with which we take the issues involved.

Last week, the director-general of MI5 said that there are at least 2,000 British citizens and residents whom his service believes pose a direct threat to national security and public safety because of their support for terrorism. Many of those people have links to terrorist networks abroad. As a consequence, it is no longer appropriate to treat domestic security and foreign relations as separate subjects, which is why the Official Opposition believe that we need a national security approach to these issues. We also believe that such an approach must be strategic in nature and sustainable over the long term.

This country must be protected, but not at the expense of the very values and principles that help to make it what it is—free and just. Nor does this side of the House believe that it is necessary to make such a sacrifice. We must be clear-sighted in our assessment of the risk and proportionate in our response. This afternoon, I want to focus on three points—the existing laws on the statute book which already give the Government great power, the need to ensure that such laws are fully and consistently applied, and the implications of the fact that our security lies ultimately in a cohesive society united around the fundamental values of liberal democracy. Clearly, there is potential for tension between the first two aspects and the third. The challenge is to find the balance. I shall not address legal and constitutional reform, as my noble friend Lord Kingsland will address these when he winds-up later.

The laws relating to terrorism are already extensive; for example, the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Civil Contingencies Act 2004 and the Prevention of Terrorism Act 2005. I could go on. Unlike legislation in relation to Northern Ireland, none of these needs positive renewal. They are on the statute book in perpetuity. In 1997, after three decades of IRA terrorism, the state had the power to detain people for five days without charge. Now it has been extended to 28 days. When asked last week on the "Today" programme, as my noble friend has noted, what the limit on pre-charge detention should be, the Home Secretary replied, "I don't know". She also avoided ruling out indefinite detention. Furthermore, she seems to be saying that these anti-terrorist powers might in future be extended to other crime. If all that is to be agreed, it would constitute an extraordinary further extension of the power of the executive. We must ask ourselves, "Would it be proportionate"? As Machiavelli noted, once the state has acquired powers, it is always liable to use them.

The Government must surely have formed a view already on the maximum period they think would be appropriate for pre-charge detention and it would be very helpful if in winding up the noble Lord, Lord Hunt of Kings Heath, could enlighten us. If he is unable to do so we are obliged to rely on the figure of 56 days, which the Government have allowed to gain currency. We also have reason to believe that the Government wish to allow, in addition to extended pre-charge detention, post-charge questioning of suspects, restrictions on convicted terrorists after they have served their prison sentences, more extensive use of terrorists' DNA records and further reinforcement of the protection to be accorded to parts of the critical national infrastructure of this country. If that is the case, it would be helpful to know why they feel that further law is needed.

I want to examine the case the Government make for the centrepiece of their proposals—the further extension of pre-charge detention. This is against the background of Ministers admitting that lack of powers hitherto has not hindered the process of investigation and charging of terrorist suspects. They claim however that they could do so in future. As the Minister confirmed, the Government appear to have two scenarios in mind. The first is a circumstance in which, despite their best efforts, the police have been unable within the existing 28-day limit to bring together in a given individual case the evidence necessary to support the charge they believed to be the right one and for which they have good grounds for believing that releasing such a suspect would endanger the public. We certainly need to consider that contingency seriously.

However, it is not as if there is no alternative to extended pre-charge detention to cover such a situation. If the police have managed to establish so great a body of evidence that it is clear to them that release of such an individual would be dangerous, it should follow that they could bring a substantively serious charge and continue investigation until they are in a position to bring final charges. In other words, it seems specious to argue that choosing the option of continuing to question post-charging in such circumstances would be to exploit unfairly the rights of the defendant.

The second scenario that the Government cite, mentioned by the noble Lord, is the complex and large-scale plot requiring extensive investigation which could not be completed adequately within 28 days. The Government point out that such a scenario would not necessarily be a remote possibility. I should like to make two points. First, the Civil Contingencies Act 2004, which allows an extension of detention—an additional 30 days in the first instance and longer if agreed by Parliament—was sponsored by the current Government with just such an emergency in mind. It is not credible to argue that the public would be alarmed by applying the right temporary measures to a situation which would cease to be in force when the emergency itself ended—unlike the proposed legislation.

We have some experience of the scenario of the type that the Government refer to: the airline plot of 2006. In that instance, all suspects were either charged or released within the existing 28 days. Suffice it to say—this is my second point—that there is reason to believe that ways and means are open to the police to conduct their investigations more speedily than hitherto, thus enabling them to do their job without further curtailment of the right to liberty of all citizens. We on this side note the Government's desire for consensus and we shall listen carefully to what more the Government may have to say on these important issues, but as things stand, we do not believe that a compelling case has been made. We are reinforced in this view by the Joint Committee on Human Rights, which concluded in July this year that:

"We remain of the view that any extension is an interference with liberty that requires a compelling, evidence based demonstrable case ... In our view, on the information currently available to us, the justification which is offered for further extending the 28 day period does not meet the strict test of necessity which must be satisfied".

The noble Lord, Lord West of Spithead, has rightly agreed by saying:

"We absolutely have to show that we really do need this".

That is indeed so but, all that said, Members on this side will work as closely as we can with the Government to make our country safe, and with that in mind we will apply the tests of necessity, effectiveness and proportionality to the proposed measures.

A sign of our co-operation has been the establishment, at our urging, of a committee of privy counsellors to examine the feasibility of admitting into court evidence obtained by intercept, and we should await its findings. I am aware of the strongly felt concerns of those, including my noble friend Lady Park of Monmouth, who fear the adverse consequences for our intelligence services of going down this path, and they should not be lightly put aside. On the other hand, there is the strong public need to find ways of bringing as many suspects as possible to trial, thus minimising the need to resort to executive detention, a most obnoxious measure for a democracy to have to resort to. I hope, therefore, that the committee of privy counsellors will be able to find an appropriately safeguarded route through for us.

As I mentioned earlier, we have had a welter of legislation in recent years. Despite this, much of the law is not being applied and is not succeeding in its intended objective. Perhaps I may give an example. For no fewer than three years after 9/11, Abu Hamza continued to preach hatred in Finsbury Park mosque. While he was doing so, the Government created some 19 new anti-terrorism offences. But it was only after the US authorities demanded his extradition against a charge of attempting to set up a terrorist training camp on US soil that he was finally charged by the UK authorities in late 2004. The main charge was soliciting murder, which has been a criminal offence since 1861. I could give other examples, so we have to ask how useful is some of the legislation which has been passed, and if it is useful, why is it not being applied with the consistency and determination that the grave increase in the radicalisation of sections of our population warrants? Therefore we question the merit of further legislation from the same Government. There is no point, for instance, in legislating for the imposition of travel restrictions on convicted terrorists following the end of their sentence unless the enforcement resources are going to be made available to prevent those concerned making a mockery of the law.

What about consistency in the application of the law? The Government have said that they would ban Hizb ut-Tahrir. That was two years ago, and they have still failed to do so. Perhaps I may take another example, that of Hezbollah, a known terrorist organisation. The Government currently proscribe only one part of it, leaving the remainder legal with the effect that it is entirely licit for Hezbollah to raise funds and recruit members in the UK. The Government expect us to believe that none of this effort will ever be used for terrorist purposes. How naive. This contrasts with the correct policy which they pursue in relation to the Tamil Tigers and the Kurdish PKK, both of which are fully proscribed. It may appear that as Hezbollah operates largely abroad it is of diminished relevance to the UK, yet I argued earlier for a national security approach because we need to bring both home and foreign policy together, the threat being both international and national. We cannot accept terrorism in any form anywhere in the world.

Moreover, we expect foreign Governments to assist us in suppressing terrorism in the UK. We must be serious about keeping our side of the bargain. Remember how long this country pleaded with the Americans to shut down funding for the IRA. This country needs to ensure that ostensible charitable activity is not exploited to finance terrorism. We intend to go further than the Government and will bring forward concrete proposals in the context of the forthcoming Bill fully to ban Hezbollah's activities in Britain, to prevent charities being used to finance terrorism and to review the Government's confused approach to proscribing extremist organisations that preach hatred and violence in this country.

The challenge this country confronts is not only terrorism but also the ideology that sustains violence and which threatens the values we all stand for. Effective counter terrorism, though essential, is not enough; we must also focus on creating a cohesive society in which all members willingly uphold the values of liberal democracy. This means that people from all communities must be able to benefit from the rights and opportunities which our society guarantees. The way we go about countering terrorism has to be consistent with this aim. Community relations are very easily damaged.

As things stand, and as we argue, we continue to fall short in the pursuit of our aims in this vital area. We do not understand well enough the ideology that confronts us and we are being outwitted in the battle of ideas. Too often we have allowed wishful thinking to cloud our judgment and have mistakenly treated as moderate opinions and organisations which are far from being so. We have done too little to articulate the values we stand for as a society. This means we must argue vigorously for those values and act against individuals who seek to undermine them, otherwise it is hard for those who we expect to integrate into our society to know what is required of them. Government certainly has a role to play but we must all have shared responsibility. British Muslims are central to the finding of solutions.

My noble friend Lady Warsi, the first Muslim woman to be made a Conservative Peer, is the shadow Minister for community cohesion. She is pre-eminently qualified to help us forward in this area and I look forward to her contribution.

Finally, the challenges of terrorism and ideology are extremely serious. The strategy we pursue must enable us to confront both without undermining the values for which we stand and which we must practice as well as preach. As President Eisenhower said during the Cold War:

"We must not destroy what we are attempting to defend".

We need hard-nosed defence of liberty rather than ineffective authoritarianism. This requires a sophisticated and coherent policy. We do not believe that we are yet at that point. We need the right laws applied consistently and the right policies pursued with vigour and determination. I am confident that this House will help us form the wise response to these important issues which the country needs and has come to expect from your Lordships' House.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 3:39 pm, 12th November 2007

My Lords, it is a privilege to open from the Liberal Democrat Benches for the Home Office. There are new Front Bench faces all around the House. Ministers in the Government, Conservative spokesmen—the noble Baronesses, Lady Neville-Jones, from whom we have just heard so eloquently, and Lady Hanham—and I are all new to our responsibilities. Given my experience of hearing from those noble Lords, having seen the noble Lord, Lord Hunt of Kings Heath in his previous ministerial role, knowing the background, and having seen the performance of the noble Lord, Lord West, at the Dispatch Box, I think we can expect fair but tough fights when we disagree and a very thorough exploration of the arguments when we are finding a way forward through the thorny issues we will all face.

Whether some of those issues fall within the responsibility of the Home Office or of the Ministry of Justice is not always clear—at times, I suspect, even to the Government. I am privileged and fortunate to join a forceful and knowledgeable team with a depth of experience in some of the thorny issues just referred to by the noble Baroness. My noble friends Lord Dholakia and Lady Falkner of Margravine will be helping us with some of the issues surrounding cohesion and terrorism. My noble friends will also contribute to some of the other issues that I shall simply touch on today.

What has struck me even more forcefully since taking over this brief is just how close the Government are coming to breaking the social contract, the contract by which people agree to be governed. That contract can only be realised by due process, and in almost every area the Government have undermined due process over the past few years. I shall look at areas where due process has been undermined or indeed thrown out, and where it should and can now be restored. We are moving to a position where the state, instead of justifying and accounting for each intrusion into individual liberty and privacy, now expects those extensions to its powers to be granted unless we the Opposition can show why they should not be granted. Simon Jenkins pointed out in the Sunday Times a couple of weeks ago that,

"While the melody of liberty plays sweet in the clouds, down below authority has all the best tunes".

This situation is compounded by public apathy, born from a feeling that no matter how public opinion is expressed it will not make a difference to government policy. The depth of that feeling started with the Government's decision to go to war in Iraq despite a manifestation of concern on the streets on a scale unprecedented in recent times. The ballot box and politicians are held in low esteem. The Government tacitly acknowledge the extreme weakness of the system when they appoint so many independent people and independent bodies to make decisions that used to be made by politicians, because the public now hold the politicians' contribution to be questionable. Sometimes independence is a virtue, of course, but too often it is a case of Ministers sloping their shoulders and hiding behind that so-called independent advice. These issues will be touched on by my noble friends Lord Goodhart and Lord Maclennan later today. This unhealthy political atmosphere is especially dangerous at a time when liberal values are under immense pressure from the fear of terrorism; we acknowledge that is a real and present threat, but it must be kept in proportion.

Sometimes I am reminded of a comment of my mother's when I was growing up and things seemed particularly gloomy. I think I was eight at the time of the Bay of Pigs. There have always been threats. In previous centuries they came from famines, plagues, world wars and nuclear annihilation—but through all of them we built and cherished our democratic traditions. The Government have finally realised how inappropriate it is to require police permission six days in advance for even one person to demonstrate in Parliament Square. They have finally issued a consultation on reform of that legislation, which was passed in haste without consultation. I trust that they have learnt a lesson from that.

The Government's realisation of the enormity of the change made in the ability of individual citizens to protest is partly due to pressure from these Benches, partly from organisations such as Liberty and partly due to the comedian, Mark Thomas, who has shown up through justified ridicule the disproportionate nature of the legislation. It is a crazy waste of police time and has involved administering a system that requires a policeman to decide whether someone with an iced cake saying "peace" constitutes a demonstration. And when we come to rewrite the legislation, who will say sorry to the likes of Maya Evans and Milan Rai, who now have a record of breaking the law and have suffered for it? What amends will they receive for upholding individuals' right to protest peacefully in our country?

The same legislation criminalised protest at other sites, as designated by the Secretary of State. If a new generation of nuclear power stations are built, people choosing to protest at those sites will find themselves under a far harsher regime and suffer much greater penalties if they hold their placard in the wrong place or if more of them gather at the fence than were given permission by the police.

This provision applies at military bases too—yet some things happening on British soil have not been subject to due process. As my noble friend Lady Williams of Crosby pointed out last Wednesday, in February the then Prime Minister promised a major debate in Parliament and a public debate on whether the UK should partake in the US-led missile defence system, now extending to Poland and the Czech Republic. All Parliament actually got was a Written Statement. That makes protests at Menwith Hill all the more important, because there has been no democratic mandate for what is happening there.

There is insufficient democratic mandate, too, for technology creep. Last week some noble Lords here may have visited the exhibition held in Portcullis House on the benign uses of tagging—for example, to help staff cope with Alzheimer's patients and keeping newborn babies safe in hospitals. However, the minute size of tracker devices, their cheapness and the ability to store the information they transmit means that Parliament must wake up to monitoring what is happening. New technologies in the hands of a state more concerned with controlling than preserving freedoms would be dangerous. The police are trialling drones, tiny remote-controlled aircraft that can photograph and spy unnoticed. These tiny mechanisms can shower crowds with "smart rain" which genetically tag people so they can be picked up later. I quote those examples because last year Richard Thomas, the Information Commissioner, published A Report on the Surveillance Society. As he points out, Home Office plans are to extend dramatically data collection and storage.

We shall continue to be concerned about these issues and challenge the necessity of these measures. DNA databases are already with us, and my noble friend Lady Walmsley has challenged the Government time and again on their policies on taking and keeping DNA from schoolchildren. Last week my noble friend Lady Barker raised deep concerns about the rights of those in the health system with regard to their DNA.

On the older technologies, the recent Home Office report on CCTV makes depressing reading, but it asks some very important questions, which we should follow up in this House, on its efficacy in combating crime. It is not enough simply to film crime; we must ensure that crime reduction is happening.

Over the coming year, the Liberal Democrat Benches will be challenging the Government approach to young people and the law. My noble friend Lord Thomas of Gresford, in his contribution to the debate last Wednesday, spoke eloquently of the use of orders, which are altogether blurring the distinction between civil and criminal jurisdictions. This blurring really worries me when it comes to young people. Many of them have a brush with the law—just a brush, nothing serious—before they are 21. That has been happening as long as I remember. In the 1950s, mods and rockers were fighting on the sea fronts; in the 1960s, hippies and Hells Angels were scaring motorists, villagers and all of middle England and in the 1970s, skinheads were frightening grannies and being pretty anti-social. But how many of those once appalling youths are now sitting in your Lordships' House or the other place and how many are teachers, doctors or civil servants? Would they have got those jobs with the DNA records that will now follow an individual through the years? I think not.

The legislative programme announced by the Home Office is more reasonable in amount this year than the overwhelming flow we have seen during the past 10 years. The Criminal Justice and Immigration Bill is a mixed bag. We can support some of it but many parts are questionable and several of my noble friends will refer to those parts this afternoon. On the Counter-Terrorism Bill, all sides would agree that the threat of terrorism is real and that those counterterrorism measures are needed. Where we part company is that we are being asked to pass legislation without the evidence. We cannot in practice be presented with most of that evidence because it is the preserve of Government and the intelligence services. The Government's July consultation on extending the pre-charge detention period listed reasons for an increase as the severity of the terrorist threat, the international nature of the threat and the complexity of those cases. That is the evidence that must be weighed but our fear is that in the weighing the Government's thumb of power is weighting the balance unduly. The evidence must be weighed against whether implementing such measures makes the situation more dangerous and makes it easier to radicalise young people. We will forensically examine whether a better route can be found. Better routes have already been suggested to the Government and I am sure that we shall spend much time debating them.

The increasing threat of terrorism is something that we take very seriously, but if even a small part of the reason for that increase is in our own hands, in the laws that we pass—I think of laws in their widest sense, for example around faith schools or actions the Government should take but are failing to take—we will use all our efforts to press those arguments. We will part company over the Government's continuing stubborn refusal to implement some very useful measures such as intercept evidence used in court.

In opening the Home Office debate in the other place, Jack Straw quoted himself back in 1997 as saying:

"Laws can help to shape more tolerant values and a better society".—[Hansard, Commons, 7/11/07; col. 144]

I thoroughly agree with him that they can but since 1997 the Government have introduced many laws that have done the opposite, and by no means most of them were introduced on the basis that they were needed to counter terrorism. We on these Benches will do all we can to realise those values of tolerance and a better society through the legislation that we pass. We shall attempt to amend the Government's legislation to make sure that it does exactly that.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

My Lords, is the noble Baroness fully aware of the number of times that the use of DNA and modern technology has led to the detection and arrest of many terrorists? Two years ago the July bombers were identified almost immediately as a result of CCTV. Serious criminals such as rapists and murderers who committed their crimes 10 or 15 years ago are identified. The value of this technology is unarguable.

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

My Lords, when the noble Lord checks my speech, he will see that I was not arguing against taking DNA and using it but against keeping the records for ever.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee) 3:54 pm, 12th November 2007

My Lords, I shall be speaking on terrorism, a subject on which I seem to have spoken so often before, and in particular on the proposed Counter-Terrorism Bill, which I worked out was the fifth in seven years. However, I bow to the better arithmetic of the noble Baroness, on whose speech I congratulate her. She makes it six whereas I made it five: I have missed one out.

I shall deal with what seem to be the two main points and, if there is any time left over, I shall make some modest suggestions of my own for inclusion in the Bill. First, there is the issue of post-charge questioning. I knew that as soon as ever that idea was floated everyone would jump on the bandwagon and even claim that they had thought of it first. It seems to be such an easy and in a sense obvious solution to what everyone agrees is a difficult problem.

But it will not do. Why not? For the simple reason that if post-charge questioning is allowed, there is a very real risk that the suspect will not get a fair trial. That needs some explanation, along these lines. The courts have always made it their primary function to ensure that trials are fair. That applies not only to the conduct of the trial itself but to what happens before the trial starts. Let me give a recent example. Not long ago, a defendant was brought to stand trial in England by being forcibly placed on an aircraft in South Africa without any judicial process of any kind. The Court of Appeal, to its shame, held that he could still have a fair trial here, even though the manner in which he had been brought here was so obviously unjust. That decision was unanimously reversed by the House of Lords. I could give other examples.

So judges are very much concerned with not only what happens at the trial but what happens in the process by which suspects are brought to trial. It is for that reason that over the years they have formulated certain rules that have always been known as the "judges' rules". Two of the best known of those rules are that as soon as there is enough evidence to charge a suspect he must be charged forthwith. The second rule is like unto it and is obviously a corollary of it; that once he has been charged no further questioning is permissible in relation to that offence. The reason for both those fundamental rules is the need to protect a suspect from oppressive questioning. The rules have a long history and they have long had the force of statute. They are currently to be found in Code C of the codes made under PACE—the Police and Criminal Evidence Act 1984. The current code took effect as recently as July 2006. Paragraph 16.4 provides:

"A detainee may not be interviewed about an offence after they have been charged".

It is not very good grammar, but the meaning is perfectly clear. There are some very limited exceptions, which only go to prove how important the rule is.

Those are just two of the rules that underpin our concept of a fair trial. Yet it is now proposed to abrogate the second of those rules in relation to terrorism. But a terrorist suspect is entitled to a fair trial, the same as any other suspect. Our notion of what constitutes a fair trial surely cannot depend on what the suspect is supposed to have done. Post-charge questioning is not the easy way out and we should resist it as vigorously as we should resist any extension beyond 28 days.

Even if it were to be allowed, where would it stop—at the door of the court? To allow a defendant to be questioned by the police up to the moment that he goes into the dock would be quite intolerable. No one would seek to defend that; but where else is the line to be drawn, once post-charge questioning is allowed? Of course the police can continue their investigation. Of course the suspect can be re-arrested and questioned in relation to some other offence. But once he has been charged and the case handed over to the Crown Prosecution Service, questioning in relation to that offence must stop.

I come to the issue of 28 days. Two years ago in 2005, Parliament rejected the 90 days for which the police had asked and decided on 28 days. No doubt much had changed between 2000 and 2005, justifying the increase from seven days to 28 days, but nothing has changed since then to justify a further increase. It is common ground that the police have not needed more than 28 days in any case so far. It is common ground that it is only on "rare occasions"—the Government's words, not mine—that the police will need to go beyond 14 days; 28 days is not the norm. Why, then, are we being asked to consider another increase so soon? It can only be counterproductive, for all the reasons given some years ago in a speech by my noble friend Lord Condon, which noble Lords will remember. It will only alienate still further those whose allegiance we ought to be seeking to secure by whatever means we can, if we are ever to see an end to terrorism.

Those were the arguments advanced in the other place, to which the Home Secretary had almost no answer to offer. Another argument that received little attention was this: Article 5.3 of the European convention—which is part of English law, I remind your Lordships—provides that a person detained on suspicion must be brought promptly before a judge or magistrate. If not, he can claim compensation under Article 5.5. If a person is detained for more than 28 days, he will be entitled under current law to go to a court and claim that he has been wrongfully detained. The outcome of that case will depend on that little word, "promptly". What does it mean? The court will have in mind the French equivalent word, "aussitôt". The court will have in mind the decision in Brogan v United Kingdom, in which the European Court of Human Rights held that detention for four days and six hours without charge was outside the plain meaning of that word. The court will have in mind that 28 days is already far longer than is allowed in any other country in the world that I know of.

This question will undoubtedly come before an English court. I do not see how it could possibly say that a suspect charged after more than 28 days had been charged "promptly". If that were the case, the court would be bound to hold that the new legislation was incompatible with the European Convention on Human Rights. The Home Secretary would then have to think again, as her predecessors have so often had to think on matters in this field. Alternatively, she would have to derogate.

I add just one other point. The fact that the time has been extended by a High Court judge every seven days does not mean that the suspect has been brought before a judge, as required by Article 5.3. Under our system, that happens when, and only when, he is charged. So the question that I leave with the Minister is: has the Home Secretary been advised by Home Office lawyers or the Attorney-General that detention without charge beyond 28 days is compatible with Article 5.3? If so, perhaps she could let us know in general terms the grounds of that advice, otherwise we will not be able to have an informed debate or make an informed decision when the Bill is brought before us. If not, I do not see how she will be able to certify that the Bill is compatible.

Photo of The Bishop of Liverpool The Bishop of Liverpool Bishop 4:05 pm, 12th November 2007

My Lords, I hope that I shall not be misunderstood if I now shift the ground and congratulate the Government on their legislative restraint in the field of home affairs. After the numerous substantial criminal justice Bills in recent years, it is something of a relief to find only one such Bill before us now. The criminal justice system needs time to assimilate, and adjust to, major reforms if it is to fulfil its objectives.

As one who recently succeeded the Bishop of Worcester to the office of Bishop to Her Majesty's Prisons, I urge the Government to consider the impact of legislation on our overcrowded prisons. It is clear that the introduction four years ago of indeterminate sentences for public protection is producing a crisis in numbers. We are rightly nervous about releasing dangerous people, but the real problem is that the parole system is having difficulty in processing those who need to be assessed. We must be careful that new enactments do not add to that pressure.

When I look at the proposals in the Criminal Justice and Immigration Bill for violent offender orders to restrict the movement of violent offenders on release, I wonder about the consequences of breaches of those orders, given the extent to which the prison population has already been swollen by various kinds of defaulting. I wonder, too, about the wisdom of non-dangerous offenders who flout their licence conditions being returned to prison for 28 days. I am not questioning the need for effective enforcement of the requirements of the courts, nor am I arguing for sentencing to be determined by prison capacity, but when the Government call for prison to be used as a last resort, it must be right to be cautious about creating new occasions for the use of custody. Appropriate sentencing and capacity must be held together in a consistent overall plan.

My second concern is about youth justice. The past 10 years have seen some welcome innovations in dealing more informally and creatively with young offenders but we are still running a system which fails to take proper account of the differences between young people and adults and gives too low a priority to welfare as distinct from punishment. I welcome the decision to make the Youth Justice Board responsible to the Department for Children, Schools and Families, as well as the Ministry of Justice. I welcome the introduction of a youth rehabilitation order. This should allow for greater flexibility for the courts, working with youth offending teams, to tailor sentence requirements to individual young people, helping to address the underlying causes of offending behaviour. Noble Lords will know that there is considerable evidence that many of the 7,000 under-18 year-olds who receive custodial sentences and many of the 150,000 under-18 year-olds who receive community orders have a range of special needs in the areas of education, mental health and drug and alcohol misuse. The emphasis must be remedial and on reducing reoffending. I am sorry, is it possible to have a glass of water? Speaking in your Lordships' House is much more demanding than doing "Thought for the Day" on Radio 4, even when sitting in front of Mr John Humphrys.

A late arrival in the Criminal Justice and Immigration Bill is the Government's proposal to introduce a new offence of incitement to hatred. It is of course essential to protect vulnerable groups in society from malicious and harmful attacks, but we need to ask whether the existing public order law is being enforced effectively and equitably before introducing new offences. Sections 4A and 5 of the Public Order Act 1986 already prohibit "threatening, abusive or insulting" words or behaviour causing "harassment, alarm or distress" to anyone, from whatever group. As we found in the debates on incitement to religious hatred, the offence of incitement brings all kinds of uncertainties about the boundaries of acceptable speech and behaviour. Any new offence will have to balance protection against freedom of expression, so that hateful and inflammatory behaviour towards particular groups is distinguished from controversial argument, for example, about sexual ethics.

I am encouraged that, when questioned in another place, the Secretary of State for Justice confirmed that the government amendment would be drafted carefully to set the threshold of the offence at the right level and that the provisions of the Racial and Religious Hatred Act, which your Lordships' House wisely amended in the interests of freedom of expression, would provide a starting point for consideration. We must look carefully at what emerges.

The examples of youth justice and incitement to hatred remind us that the criminal law is only one part of society's response to unacceptable and anti-social behaviour. It is an essential part, but it relies for its effectiveness on the ordinary processes of social cohesion through families, communities and institutions. Coming from the city where Rhys Jones was tragically killed, I cannot overlook the vicious impact of the gang culture and the carrying of offensive weapons. The law on its own cannot change these deadly patterns of behaviour. Behind it must stand families, communities and groups who deal firmly but positively with temptations to act criminally and hurt others. Legislation and criminal justice policy depend on these relationships and social forces to create and maintain a healthy and well-ordered society.

Experience leads me to know that many people now feel unsafe even in their own familiar neighbourhoods. Lawless behaviour is no longer confined to areas of deprivation. I do not wish to be alarmist but young people themselves are feeling the fear as gangs hold greater sway on our streets and in our parks. Gangs are a family substitute. We need to understand the roots of this malaise.

These Benches wish to work with the Government not only in legislating justly for the offences, but in understanding the begetting of the offender. Offender management is an important development within the criminal justice system, but offender management is secondary to the priority of understanding the conditions and changing the criminogenic culture that gives birth to so many persistent offenders in today's society.

Photo of Lord Morgan Lord Morgan Labour 4:14 pm, 12th November 2007

My Lords, the process of constitutional reform was the most radical and innovative part of what was generally a workmanlike and constructive Queen's Speech. Indeed, constitutional reform has been perhaps the most radical and distinguished part of the Government's programme since 1997, so I welcome the fact that this has been continued, particularly under a Prime Minister who has a serious intellectual engagement with the issues involved.

We need more reform for many reasons. There is a lot of unfinished business. Devolution, notably in Wales, is manifestly incomplete: the legislative process is tortuous and unsatisfactory. England remains a black hole in the whole area of constitutional reform, where virtually nothing has been done. We need clarification on human rights legislation to underpin it, although I would not welcome attaching the idea of human rights to nationalism, having a British bill of rights that somehow distinguishes between British people from others. The process of parliamentary reform is still of course incomplete; the process of House of Lords reform is in an indeterminate condition, to put it kindly. We also have many questions to ask about constitutional relations with Europe.

In some areas there is not merely uncertainty but a real prospect of conflict. For example, the human rights issue has seen judges and Ministers taking different interpretations in a very undesirable way. We have seen devolution and dirigisme in conflict, with possible serious consequences in Scotland. We have different measures which seem to pull in different directions. It cannot be left as it is. However, reform is desirable in itself to underpin our freedoms and to bring our constitution up to date and forward into the contemporary world.

Gordon Brown recently spoke on liberty and derision was heaped on his head, to the effect that he was comparing himself to that great man John Stewart Mill. In one respect at least, Gordon Brown is better than John Stewart Mill. John Stewart Mill was a wonderful man who never ran anything. He was a hopeless Member of Parliament and headed a very large number of campaigns that were totally unsuccessful. Thus it was that in the debate in which some of us took part at the Liberal Democrat conference, the Liberal Democrats thought that he was the perfect representative of liberal democracy, far ahead of Gladstone and Lloyd George who actually had to do things and to run the country. I also think that Gordon Brown is possibly a better democrat than John Stewart Mill, who spent a great deal of his time worrying about the tyranny of the majority.

At any rate, whether superior or inferior to John Stewart Mill, Gordon Brown proposes constitutional reform as a linchpin of personal freedom. Like, I am sure, many on these Benches, I welcome many aspects of that, including extending the historic right to petition Parliament, and certainly to demonstrate in the vicinity of Parliament. I also accept with great enthusiasm the clarification of the role of Attorney-General, which produced such difficulty in the totally criminal invasion of Iraq which has stained this Government's reputation.

I am less enthusiastic about internment without trial. Indeed, the proposal to extend it to anything remotely like 56 days is totally wrong in practice and principle. We have heard devastating attacks from the noble and learned Lord, Lord Lloyd of Berwick, and others. It is totally in conflict with the historic principle of habeas corpus which in some sense has enshrined legal practice in this country since before Magna Carta. The classic statement against detention without trial was, I am proud to say, from somebody else from Aberdyfi, Lord Atkin. During the Second World War he said that,

"amid the clash of arms, the laws are not silent".

We have heard no sensible evidence that such provision is necessary. I deplore the attempt to politicise the head of MI5, who has told us of nameless terrors like some latter-day King Lear. The head of MI5 should get back to his day job and not engage in politics to help the Government.

The Achilles heel of what has generally been an admirable Government has been civil liberties: control orders, ASBOs and ID cards. The Minister has perhaps joined the Labour Party more recently than I. I joined in 1955 because I was enthused by the libertarianism of Aneurin Bevan and Hugh Gaitskell. Although they disagreed on other things, they were at one in seeing socialism as the motor of liberty. I say to the Minister that I deeply regret that a Labour Government should even think in these terms. It reminds me of the famous remark of Madame Roland during the French Revolution, "Liberty, what crimes are committed in thy name!". We are told that Gordon Brown is open-minded, and I trust that he is.

For the rest, I warmly welcome it. I warmly welcome the restoration of Cabinet government instead of the sofa regime we have had for some time, and the new respect for civil servants. I welcome two things in particular. One is the admirable emphasis on citizenship. We do not talk much about citizenship in this country. If you read manuals on constitutional theory, "citizenship" often does not even appear in the index. We are subjects because our tradition is monarchical. We cannot say as the American did in their constitution:

"We the people of the United States".

It is admirable that the Government are focusing on citizenship. I hope that they will focus on citizenship not only for people coming to this country but also for those of us who are already here and that they will strengthen our organic relationship with our constitution.

Secondly, I enormously welcome the new status for Parliament. Under Tony Blair, Parliament and especially the Commons became what Bagehot would have called the "dignified" part of the constitution. Indeed, the House of Lords looked rather more efficient than the Commons during the past few years. I welcome the fact that Parliament is being strengthened as it is under challenge from many areas including devolution, referendums and relationships with Europe.

I particularly warmly welcome an end, I hope, to the royal prerogative. It has been a load of historical humbug. It is a fiction and a relic of our pre-democratic past. It is right that Parliament should have the right to approve treaties and to approve our forces going into armed conflict. The Iraq invasion shows the catastrophe that can result if we operate in a way that is not subject to parliamentary sanction. The Government's paper—I am not sure whether it is a White Paper—extends various options. I think that I probably prefer simply the strongest legislative control so that it is possible for Members of Parliament to exert their view. What is particularly important—it is mentioned en passant in the Government's paper—is a statement of the legal position. It was quite wrong that the House of Commons should have been asked to discuss the invasion of Iraq without a proper statement on the legal context, the relationship with the United Nations and so on. We have discovered—it was like getting blood out of a stone—how that legal basis was arrived at and that it was totally wrong.

The process of change will go on. I have always supported a written constitution because it would be a guarantee of liberty. Our unwritten, informal convention is a bulwark against change, including social change. I recognise that the process will take a very long time and that it is probably better that we continue as at present to progress towards incremental change. Our constitution has to change because our society has changed. Just as the British constitution changed in the early 19th century because our society changed under the impact of industrialisation, so it must do so now when society is in flux and is much more multicultural and diverse and much less deferential. No longer can our constitution be run on Douglas Jay's historic principle that "the gentleman from Whitehall knows best". The Queen's Speech takes us down the right road. It is not a road to serfdom but a road to libertarianism, a libertarian culture, and that fuller freedom which all democrats, and certainly all democratic socialists, must desire.

Photo of Baroness Shephard of Northwold Baroness Shephard of Northwold Conservative 4:24 pm, 12th November 2007

My Lords, the gracious Speech makes reference to the Government's continuing aspirations for constitutional reform, and I believe that we are to expect a draft Bill on constitutional renewal in the New Year. There has been no shortage of enthusiasm for constitutional reform under this Government and, indeed, under this Prime Minister. His Statement on the constitution in the other place on 3 July, as repeated in this House, said:

"While our system of representative democracy—local as well as national—is at the heart of our constitution, it can be enhanced by devolving more power directly to the people and I propose that we start the debate and consult on empowering citizens and communities".

The Statement promised,

"new duties on public bodies to involve local people", and,

"new rights for the British people to be consulted through mechanisms such as 'citizens' juries' on major decisions affecting their lives".—(Hansard, 3/7/07; cols. 921-22.)

The Green Paper, The Governance of Britain, which was published alongside the Statement, quoted in turn from a local government White Paper, Strong and Prosperous Communities, which was published a year ago. That White Paper set out the new duty placed by the Government on local authorities in England to consult and involve local people in the major decisions that affect them. That means that local authorities must take the views of their communities into account.

Those are fine aspirations with which the House will no doubt agree. Indeed, who could disagree? It is perhaps textually hypercritical to point out the similarity between the White Paper and the Green Paper. No doubt the Government in so repeating themselves were consciously reinforcing their intent to involve the citizens of this country in constitutional change. I hope that the Minister who will be replying to the debate will be able to address some of my concerns about deficiencies in the process, which are happening right now in England. In England now at local government level, do we find that local people are being consulted and involved in the major decisions that affect their lives? Sadly, as far as local government reorganisation is concerned, we do not. I shall give the example of my own county, Norfolk, although examples could be drawn from elsewhere in England.

Some time ago, the Secretary of State invited bids from interested local authorities in two-tier areas to become unitary authorities. In Norfolk's case, the City of Norwich submitted such a bid. The other seven local authorities, including the county council, made it clear that they preferred the status quo for a number of reasons. One is that services are highly integrated. Another is that, as will be known in this House, the county council has only just succeeded in absorbing the local government reorganisation also known as Every Child Matters. The Norwich bid, based on the city's current boundaries and submitted with not very much consultation with the people of Norwich, was not accepted by the Secretary of State, in particular, on the grounds of value for money and affordability—fairly important reasons, I should have thought. However, the Secretary of State directed the Boundary Committee,

"to look at local government structures in Norfolk with a view to their making an alternative unitary proposal".

In other words, despite the fact that the seven other councils affected made clear that they did not want local reorganisation, their views were not heard. The only way forward was to be unitary reorganisation.

It is pretty hard—although I have such respect for the Minister that he may succeed in doing this—to square the Government's actions with their words on the constitutional involvement of citizens. As it happens, the populations of the two district council areas likely to be most affected by the creation of a de facto Greater Norwich—South Norfolk and Broadland—were consulted on the proposal, because it was the principal issue in the May local elections. The proposal was given a trouncing by the electorate but on this occasion, the ballot box did not really seem to count, despite the fact that the Government are placing a duty on local authorities to consult and involve local people in the major decisions that affect them.

What we are talking about in Norfolk and elsewhere in England is wholesale local government reorganisation, but it seems to be a wholesale local government reorganisation that does not dare to say its name. If one local authority out of eight decides to become unitary, that imposes reorganisation on the other seven, although they can have no say and are not to be consulted in any other way. How can this be, given the Government's strongly stated and extremely oft repeated aspirations to involve citizens in decisions that matter to them? Why cannot the status quo be an option, what principle of involving citizens is being upheld, and where and when was the principle enunciated and legislatively approved? I know that the brief today is very wide, but we really are talking about the principle and aspiration of involving citizens in matters that affect them. This is an extraordinary way for the Government to proceed. If they want local government reorganisation on unitary lines in England, they are of course entitled to say so and to get a mandate to proceed accordingly; but that is not what they are doing. Nor are they doing what they say they are doing in the Green Paper, in the White Paper and in statements to Parliament, because they are not involving people in changes that will greatly affect their lives.

It is conceivable that the people of Norfolk would say yes if they were consulted on whether they want their local government to be reorganised, and if so, whether they wish that reorganisation to be on unitary lines. They are unlikely to look with favour on the overall cost to them of such reorganisation, which has been conservatively estimated at some £100 million, especially when they are also being told that services for children, education and the elderly are facing cuts this year. They are equally unlikely to take a relaxed view of the enormous sums being put aside by councils to prepare the bids that they do not want to make: £250,000 on the part of the county council; £200,000 on the part of the King's Lynn council; and £90,000 for an officer in Norwich. The people of Norfolk will be entitled to ask who exactly is asking for this change, because it does not seem to be them. They will be amazed to learn that not only are they to be plunged into the upheaval of a reorganisation that they have not asked for, but they are to be asked to pay for it. They will be amazed to learn that Mr. Max Caller, the chairman of the Boundary Committee, has ordered their councils to prepare plans for this reorganisation by the end of the month. I believe that people in Norfolk would prefer to keep the arrangements that they have. I may be wrong, but the point is this: we cannot know what they think because they are not being asked, and will not be asked, if they would like to keep the status quo. That is because, as Max Caller, civil servants and Ministers have made abundantly clear, the status quo is not an option.

This sits ill with the Government's professed enthusiasm for the involvement of citizens in matters that affect them. We have not yet heard this afternoon what the likely content of the draft Bill on constitutional renewal will be. As I said earlier, I think extremely highly of the Minister who will reply to the debate. He has a well earned reputation for listening carefully and for knowing a great deal about what is happening on the ground and what people feel about it. He has certainly proved in another post that he can change the Government's course; he will know that I am talking about the reorganisation proposed by PCTs. He must agree that it is not entirely fair to rule out one option if you really do want to involve citizens—I quote again from the Green Paper and the White Paper—in matters that will affect their lives. I look forward to hearing what he has to say later on this evening.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords (Communities), Department for Communities and Local Government 4:34 pm, 12th November 2007

My Lords, we welcome the gracious Speech which promised to,

"take forward policies to respond to the rising aspirations of the people of the United Kingdom; to ensure security for all; and to entrust more power to Parliament and the people".

But that must be measured against two main criteria—the governance of Britain as announced by the Prime Minister in July, and its translation into the Government's legislative programme as announced in the gracious Speech. We have the director-general of the Security Service telling us that we face the worst threat in peace time in its 98-year history. Terrorists are methodically and intentionally targeting young people—he estimates a figure of at least 2,000. We are promised a Counter-Terrorism Bill, yet the discussion of the past few days has centred on the detention period and the Home Secretary is still not clear about what is appropriate.

The questions on which we need answers are basically simple. How have the past measures worked? What is our long-term strategy? Why are the faith communities so uncomfortable with the Government's stance? What are the short-term goals and long-term objectives? We have the Criminal Justice and Immigration Bill, yet there is a confused message about numbers and legality of entrants. We need a value-driven British identity as a core goal that takes into account the implication of globalisation, devolution and asylum and immigration issues.

Let me use as an illustration my conversation two weeks ago with the Government of India. Poland has such scarcity of its own citizens that it is now inviting India to send its professionals to Poland. That says something. Look what we did to overseas doctors on the Highly Skilled Migrant Programme here. The Government wanted to throw them out. Even the Appeal Court judges said last week that the Department of Health treatment of doctors was not lawful. How much faith can we place on the Government's statements that their legislation is compatible with the Human Rights Act 1998 when courts have repeatedly overruled or decided otherwise? Last week, I attended a reception where John Griffith-Jones of KPMG said:

"I worry about recent developments in the UK. Multiculturalism is essential to the future of the world and especially to London. The ability of our city to prosper is wholly dependent upon us having a great mutual respect for each others' backgrounds, cultures and practices".

The question of identity is complex, but it need not be so. Defining Britishness is not the full answer. Very recently, a British national daily newspaper asked its readers:

"What does it mean to be British?".

I read the response in some of the emails that followed, and one from a chap in Switzerland caught my eye. It said that,

"being British is about driving in a German car to an Irish pub for a Belgian beer, and then travelling home, grabbing an Indian curry ...(to) watch American shows on a Japanese TV. And the most British thing of all? Suspicion of anything foreign".

It is right in a democracy that there is a sensible debate about such issues. We should question what happens when an individual or group identity impinges on other people's lives and liberties, but do we really believe that the wearing of the veil practised by a small proportion of women will have any bearing on the process of community cohesion or the advancement of an integrated society?

I am also disappointed and somewhat angered that a coroners Bill, which was promised by the Minister, was not included. Families are experiencing serious delay in the holding of inquests, the narrow remit and problems with public funding. Urgent reforms are needed. Surely the deaths of vulnerable people in custody have clearly demonstrated that we need an extension of the remit of the inquest system. We need to change the structure to create a national coroners service to improve service delivery and ensure high standards and accountability.

We need to improve the support and information available to bereaved people. We need the introduction of a system for monitoring inquest verdicts and statutory obligations on public bodies to respond to the findings of an inquest. We should promise non-means-tested legal aid for bereaved people and we need specific action to be taken to counter lengthy delays. Yet I see no evidence of this important measure in the Queen's Speech.

Another regrettable omission from the Government's legislative programme is legislation to reform the Rehabilitation of Offenders Act. Four years ago the Government accepted the case for reform on the lines recommended in the Home Office review group report entitled, Breaking the Circle. So far no such legislation has seen the light of day. The Rehabilitation of Offenders Act provides that after specified "rehabilitation periods" ex-offenders do not have to declare spent convictions when applying for jobs, except for certain sensitive occupations. However, the rehabilitation periods are often lengthy and many genuinely reformed ex-offenders can never benefit from them: for example, if the sentence was a fine, it takes five years to become spent; three months' imprisonment takes seven years; a nine-month sentence takes 10 years; and sentences of more than two and a half years can never be spent. I offer a challenge: if the Government are so serious about rehabilitation, when do we expect this legislation?

The Breaking the Circle report proposed new, shorter "buffer periods" before convictions become spent. This reform would greatly reduce the scope for unfair discrimination against former offenders. It would also increase public safety by reducing reoffending because offenders who get and keep a job are between one-third and one-half less likely to reoffend than those who remain unemployed.

On 11 October, in answer to my Oral Question, the noble Lord, Lord Hunt of Kings Heath, assured me that the Government remain sympathetic to reform of the Act. He said that they would consider whether the Breaking the Circle proposals need amendment in the light of the Safeguarding Vulnerable Groups Act 2006. I hope that the Government can conclude their consideration of this matter speedily and introduce the necessary legislation at the earliest possible date. Failing that, I shall certainly think in terms of promoting a Private Member's Bill on this matter.

The Queen's Speech refers to the continued passage through Parliament of the Criminal Justice and Immigration Bill. l welcome a number of measures in the Bill, including those to reduce the length of time which prisoners recalled to prison for less serious breaches of supervision spend in custody. Also welcome is the removal of the power to pass suspended sentences for offences which are triable only summarily. This change should help to reduce the negative effect on the prison population of activated suspended sentences passed on offenders who could perfectly well receive a community sentence instead.

However, these measures will have only a very limited impact on our overstretched and overcrowded prison system. Far more needs to be done to reduce the unnecessary use of prisons if we are to give the Prison Service a reasonable chance to rehabilitate a manageable number of prisoners. The Minister will no doubt remind us that the Government are committed to building more prisons, but unless steps are taken to reduce the use of prisons, the courts will simply fill new prisons with ever more prisoners, providing no relief for overcrowded jails. It is like trying to run down an escalator which is moving ever more rapidly upwards.

Earlier this year Nacro, the crime prevention charity, of which I have the honour to be president, put forward a 10-point programme to reduce the prison population. I understand that the Government are reviewing and considering the proposals, one of which is that the Government should do more to tackle the revolving door of short-term prisoners. At any one time 8,000 prisoners are serving sentences of less than 12 months. These sentences do little to protect the public because containment periods are far too short. The time spent in prison is too brief for a serious rehabilitation attempt but long enough for prisoners to lose their homes and jobs, which makes them even more likely to reoffend. More than 70 per cent of these short-term prisoners are reconvicted within two years of leaving prison. Nacro has proposed that the Government should commission a resettlement service run by voluntary organisations for short-term prisoners to reduce the number who keep going back to prison.

The Government should also legislate to require sentencing guidelines to take into account the capacity of the prison system. This was a recommendation made by the noble Lord, Lord Carter of Coles, in his report on the correctional services published during the period when David Blunkett was Home Secretary. At the time, Mr Blunkett accepted the noble Lord's recommendations, but they have never seen the light of day in the form of legislation.

Legislation should also be introduced to prevent the courts imprisoning juvenile offenders unless they have first tried an intensive supervision and surveillance programme, except for those young people who commit grave crimes. There is a strong case for extending a similar provision to adults. What is the point of sending non-dangerous offenders of any age to jail before trying an intensive alternative, one without the undesirable side-effects of prison?

I conclude by spelling out what my noble friend Lord McNally said on the first day of the debate:

"We will not hesitate to give our support when national security demands it, but neither will we shirk from opposing measures which are authoritarian and undermine hard-won liberties".—[Hansard, 6/11/07; cols. 14-15.]

I joined the Liberal Party 50 years ago. These are the values I cherished then, and they are the values I cherish now. These are the values on which compromise is not possible.

Photo of Lord Patel of Bradford Lord Patel of Bradford Crossbench 4:46 pm, 12th November 2007

My Lords, as I listened to the gracious Speech last week, I was particularly interested to hear Her Majesty refer to citizenship and the need to strengthen communities, and it is to these issues that I wish to speak. I am very pleased that the Government are planning new legislation in the area of citizenship and that we have the opportunity to debate such an important issue in this House.

I know that it may be somewhat premature to raise issues about the Bill when we have yet to see the results of the review being conducted by the noble and learned Lord, Lord Goldsmith, which I look forward to, but it is the remit of that review which has prompted me to speak today. What caught my attention in particular is that the review will seek:

"To clarify the legal rights and responsibilities associated with British citizenship, in addition to those enjoyed under the Human Rights Act, as a basis for defining what it means to be a citizen in Britain's open democratic society".

I therefore assume, rightly or wrongly, that this will influence directly the basis of any Bill on citizenship that comes before this House and the other place. Citizenship, I am anticipating, will be viewed in the context of rights and responsibilities,

"in addition to those enjoyed under the Human Rights Act".

This interests me because it often seems that rather than try to create additional rights, we live in an age when the very basic rights afforded by the Human Rights Act seem to be under threat. That is why this debate is so important—because fundamentally what we are talking about is who we are, who we want to be as a society and—perhaps more importantly—who we want to participate in that.

Let me make it clear that any discussion of citizenship is about those people we exclude as much as those we include, and we already have plenty of people in our society who feel excluded—for example, those who cannot get work easily, especially Pakistani and Bangladeshi women who face much more severe penalties in employment than other groups. The same can be said of women—those who are married and those who are single—with children. Similar problems exist for the disabled. There are those who are treated unfairly, such as young black men. They are 18 times more likely than the average to be admitted to mental hospitals. There are those who feel rejected, like young gay men and lesbians. They are 14 times more likely to make a serious suicide attempt. There are those who are entering the criminal justice system for the first time, such as Muslims in the prison system. They have experienced a fivefold increase in numbers in recent years. There are those who feel let down by the society they have helped to build, like the half million older people who experience some form of verbal and physical abuse every year in the UK.

I could go on, and sadly I could fill this debate with accounts of all those who are unable to feel part of this society—those who cannot experience the full benefits of citizenship as they should. This is what threatens our communities. So I greatly welcome the Government's commitment to community cohesion, and this is something in which I have some expertise. Throughout my career, I have had the good fortune to work with a wide range of community groups and individuals from across the whole spectrum of our society. If I am honest, much of the reason for that has been unfortunate because it has come about following some breakdown or conflict within those communities. It may be the increasing use of drugs or alcohol, mental health problems, physical health problems, family breakdown, community tensions or even violence. More recently, I have been working with community groups and the police on issues related to serious crime, including the threats posed by extremism and the risks of vulnerable people being led towards terrorist activities.

So, yes, mostly the reasons why I have become involved with communities have been about disintegration, social confusion and rejection rather than cohesion. I suppose that is what we all tend to do. When we approach the issue of cohesion, we look at it from a perspective of what is not cohesive, what is not together or what seemingly cannot be unified. But cohesion is not about having one single group or community that is unified: cohesion means "pulling together". In scientific terms it is the force of attraction between molecules and, as you all know, there is no stronger force in nature.

So should we not start to look at what is working well and learn from that? Let me suggest just three simple areas we must consider. First, let us recognise and start to celebrate the fact that we have a great many vibrant and strong communities that contribute significantly to the overall character and wealth of our society. Consider the rich heritage of languages, religions, food, art, music, clothing, fashion, film, poetry, literature and cultures that we have all around us. All of this contributes to who we are as a nation, a country, a citizenship. I do not think that we are very good at recognising this or celebrating it. I found it hard myself, which is perhaps not surprising when you consider that I am a Yorkshireman. After all, we really have to be pushed to see the value in anything that is not from Yorkshire. But I do value diversity, and that must be our starting point in seeking to strengthen communities. Diversity is a strength and not a threat to social cohesion.

Secondly, we should not try to create unnatural or forced communities under the guise of social cohesion. We cannot force people to integrate in ways that go against their natural instincts and ways of being. In fact, my own research shows that to do so is potentially harmful. In mental health, for example, the risk of experiencing an acute psychiatric illness increases when people live in areas where they feel isolated. I doubt that surprises anyone. Good mental health, it seems, comes from our sense of belonging, and much of that comes from living amongst those who are familiar to us. The uncomfortable message here is that living amongst people of our own background and cultural identity is good for our mental health. Artificial attempts to force greater social integration may in fact increase health and social problems and act against community cohesion. In some ways this goes against the prevailing trend of trying to create a greater mix of ethnicity in estates and schools, but we ignore these messages at our peril—or, more particularly, at the peril of those we expect to live in these newly envisaged communities.

This brings me to my last point: how do we know what works? I have pointed to some evidence on mental health, but what about other models? What other models should we be using in our attempts to build stronger communities? Your Lordships know exactly what I am going to say now: we do not need expert-led models; we do not want professors telling us what we should be doing—and I speak as a professor who enjoys telling people what they should be doing. No, what we need—and it is all we need—is the active engagement of the communities. They are the only ones who can truly tell us what works.

The things that seem most difficult to face, such as drug use, mental health, the fear of terrorism, are transformed once communities are involved in the changes. So, as we continue our debates on this crucial area, I shall be asking what kind of national indicator is being used by the Department of Communities and Local Government to measure its success, and how does that reflect engagement with the communities concerned. These are some of the most pressing issues we face as a society and we have to get this right. It is not only the fate of all those who currently feel excluded on which these matters depend but, very possibly, the fate of us all.

A

Mental illness occurs in all sections of society, whether indigenous or immigrant. They are one of the socially excluded groups whatever their colour, creed or background. It is at times necessary for them to be admitted to hospital, more often for their own safety as well as the safety of others. Yet the Government has closed many psychiatric beds and placements. Severe and enduring mental illness should be regarded as a disability, just as much as a physical disability, although when the patient is receiving good treatment, either inside hospital or in the community, their disablity is unseen, and often mis-undestood. They can become outlawed in society, and wrongly enter the penal system, rather than the NHS.

Submitted by Alix Cull

Photo of Lord Borrie Lord Borrie Labour 4:54 pm, 12th November 2007

My Lords, Members on all sides of the House have welcomed over a period any and various early warning signs of the Government's legislative intentions, whether they come in the form of consultation papers, Green Papers, White Papers or draft legislation. We must therefore welcome the publication in October of the three consultative papers on certain aspects of the governance of Britain. I want to make some preliminary remarks about two of them; one on the making of war and treaties and the other on judicial appointments.

As my noble friend Lord Morgan indicated a short while ago, I favour in principle the idea that in a democracy such as ours the Government should be accountable to Parliament for decisions to enter into armed conflict on our behalf. Yet, almost inevitably, the idea of "parliamentary approval" raises more questions than it solves. In an emergency there is a clear need for the Government to be able to act without advance parliamentary approval. What are to be the consequences of the Government not acting with parliamentary approval, whether given in advance or retrospectively? What information must be given to Parliament to enable it to perform its function without endangering military action? The distinguished journalist Charles Moore puts the point rather neatly in the current edition of the Spectator; just one sentence puts it very neatly:

"War cannot be fought according to the timetable of parliamentary business".

The consultation suggests something that must interest Members of this House: whereas the House of Commons should have a voting role in the matter of war and peace, the Lords should merely deliberate on the matter. To my mind, that rather diminishes the great weight of expertise that we know exists in this House on foreign affairs and defence matters, referred to only last week by the Leader of the House, my noble friend Lady Ashton of Upholland, when she referred to the "intimidating" expertise on these matters in this House.

I am rather surprised to see—and am therefore more critical of—the Government's consultation paper on judicial appointments. Only two years ago in the Constitutional Reform Act 2005 an important and, to my mind, desirable change was made when the old system of the Lord Chancellor's complete discretion was replaced by an independent Judicial Appointments Commission having not the only role but the key role in the selection and appointment of judges. However, the new consultation paper suggests further changes might be made, such as removing the remaining vestigial powers of the Lord Chancellor. The possibility has even been mooted of a role for Parliament in approving judicial appointments. I am glad that the Government have said in the consultation paper that if Parliament were to be involved in questioning applicants for judicial posts there would be a danger of politicising the whole process, but the consultation paper seems to favour post-appointment parliamentary hearings for the most senior posts of Lord Chief Justice and the heads of the various divisions on their administrative roles. I share the anxious doubts of Joshua Rosenberg, the much respected commentator on legal matters, on the effect of such hearings on judicial appointments. He says this is,

"a recipe for constitutional conflict".

I am glad that the noble Lord, Lord Kingsland, is going to wind up in this debate and is sitting here at this moment. I was surprised to hear him, on 25 October at col. 1158 of Hansard, express support for the "advise and consent" process of the United States Senate in its application to judicial appointments. Perhaps we shall hear at the end of the debate whether that is official Conservative policy.

I see very little substance in the consultation paper on judicial appointments. Of course, one must search for new roles for Parliament, but this is the wrong role. It would involve politicising the process, and the Lord Chancellor's existing powers under what I might call the 2005 settlement are limited to requiring the Judicial Appointments Commission to think again about a particular appointment that it puts forward—a very modest power indeed. The time lag since 2005—or rather, I should say, the implementation of the Act in 2006—is so short that there has hardly been enough time in the way of experience to guide anyone who might be moved to respond to the consultation paper.

I share the view of my noble friend Lord Morgan that the Government's prerogative powers need to be re-examined, but we dealt with judicial appointments satisfactorily two years ago. If there is anything wrong in detail, as I dare say there must be, it is far too soon for us to revisit that already.

Photo of Lord Trimble Lord Trimble Conservative 5:01 pm, 12th November 2007

The gracious Speech made reference to devolution and the devolved Administrations in what I shall refer to in the rest of this contribution as the regions. Consequently, I shall look at what continues to be a significant issue, in respect of which some interesting proposals have recently been made—I am talking about the West Lothian question and the Barnett formula. Before I come to the substance of those, I make it absolutely clear that I am in favour of devolution, as I always have been, and I approve of the present devolution arrangements. However, it is important to remember that the devolved bodies in Belfast, Cardiff and Edinburgh are not on a par with this Parliament. There is a very simple principle here: devolved power is power retained. The power devolved to those bodies can be recalled, as we in Northern Ireland know only too well, and their views overridden. The power of this Parliament to override the devolved bodies is enshrined in legislation. This is the only sovereign Parliament in the United Kingdom, a point which is sufficient in my mind to settle the West Lothian question as being neither serious nor substantial.

However, we have to address an important point: there seems to be increasing dissatisfaction with devolution in England and a growing feeling that devolution has worked out unfairly in practice. In response to that feeling, it has been suggested that, within this Parliament, some form of English grand committee should consider English business. That is not a good idea for a number of reasons. It would introduce two classes of Member with regard to the business of Parliament, which is wrong in principle and extremely difficult to operate in practice—for example, it is difficult to define "English-only business". My noble friend Lord Roberts of Conwy pointed out that there are eight Bills with Welsh clauses in the Queen's Speech, and a further four Bills with framework clauses empowering the Welsh Assembly to legislate. That illustrates the difficulty of definition. In addition, such an arrangement would lead to there being potentially different majorities in the House with regard to different issues. Jack Straw was right to remind people of the experience of the three Irish home rule Bills. Three different solutions to that issue were canvassed in each, ending up with a very crude compromise, which, although I shall not discuss whether it was successful, is worth looking at.

We should also consider the way in which Government formulate policy and the way in which that operates. We have a Government of the United Kingdom; they have Ministers who make policy and who are generally allocated a particular subject—it may be health or education and so on. As far as the Government are concerned, each of those Ministers is their lead on that subject, but those subject departments are by and large also the so-called English ministries. In addition to subject ministries, there were, and still are, three territorial departments—for Scotland, Wales and Northern Ireland—and in those departments various junior Ministers from time to time would be given particular responsibilities for particular policy areas. But the policy that was made in the subject departments in Whitehall was the Government's policy as a whole, and the territorial departments simply implemented that policy. In Westminster, if a Scots, Welsh or Ulster Member wanted to get involved in a debate on government policy on a particular issue, such as health or education, his only real chance to do so was in the debates created by the English department—the Whitehall department. Has devolution made a difference to this? I do not think so. And here we have to look at the issue of finance and the Barnett formula.

We should remember that the Barnett formula means that if there are increases in public expenditure in England, the devolved regions will get the per capita equivalent. It is a simple formula that transfers the increases that have occurred in England to the regions on a per capita basis. Those increases in expenditure in England are done on the basis of the Government's policies. Therefore, the per capita equivalent that goes to the regions is the money that they need to implement the Government's policies. So financial considerations effectively determine policy for the regions, which in theory have the freedom to vary those policies; but the financial considerations have meant that the variations are modest. That leaves out of the account the joint ministerial committees, which are designed to co-ordinate policy between Whitehall and the devolved regions. If a Scots Member could not vote on an English matter, he would be limited in his input into a policy that will, in all probability, apply in Scotland and which the MSPs will probably accept with only minor changes because of the influence of financial and other pressures. So the result of the adoption of a grand committee in this Parliament to deal with English matters will only diminish the quality of democratic accountability and policy-making with regard to the regions.

I note in passing that the Barnett formula is actually deflationary for the regions because, if their existing expenditure is above the UK average, which is the case in most of them, per capita increases in the regions will bring about a lower percentage increase in the regions compared with the percentage increase in England. In the long run, if Barnett is applied without any variation, there will be a regression towards the mean in terms of expenditure. But that has not happened, and we are entitled to wonder why not. I am not in a position to give an answer; why we have not just Barnett but Barnett plus in respect to the regions is for the Treasury to answer.

The problem that I mentioned at the outset was the growing feeling in England that the system was operating unfairly. I am not in a position to say that this problem should be ignored; some things need to be done, and there are three things that could be done. First, we should make the operation of the Barnett formula absolutely transparent, requiring the Treasury to publish the calculations that it makes with regard to increase of expenditure, to identify clearly what is coming as a result of the Barnett formula, so that the Barnett plus element, where it exists, can be identified, and people can consider whether it is justified. It may be justified in some cases because of the different circumstances in the regions, but let that be clearly seen and let people know what is happening in that respect.

The second thing that should be done is to tackle what I regard as the real problem—namely, that in some respects expenditure in the regions is often inefficient and simply too high. There is a very simple explanation for this factor: Thatcherism and even new Labour scarcely touched the regions. It certainly had virtually no effect on Northern Ireland policy; public services in Northern Ireland still operate on what is basically a 1970s model. There has been an element of Thatcherism and new Labour in Scotland and Wales, but not to the same extent as in England. What should be done, rather than to look at procedures, is to look at the problem, which is the comparative inefficiency of public services in the regions. It should be borne in mind that those inefficiencies and the variations in government practice that give rise to this problem are the result of Executive decisions within existing budgets, so changing the procedures for legislation will have absolutely no impact upon that. It is unwise to tell the man in the English street that an English grand committee will solve a problem which does not arise from legislation but Executive decision-making. That will not help.

I saw the interesting suggestion by Peter Riddell in the Times last Thursday that expanding powers of taxation would be appropriate but I do not think that will work either. It is like the existing 3p in the pound variation that the Scottish Parliament can make. It has never used it to have a higher level of taxation, and I cannot see that a devolved region will have a higher level of taxation than that applying nationally. If it is used to have a lower level of taxation, the Treasury will retaliate by calculating the block grant on the assumption that the local tax yield is at the same rates as that in England, so that is not a solution.

The third thing which I think should be done to deal with the problem in terms of English public opinion is to reform local government in England in such a way as to give substantial authorities real discretion with regard to how they spend their budget. I listened with interest to the comments of my noble friend Lady Shephard on the desire of people in Essex to retain their present local government set-up. I note that there is in England no strong feeling as regards regional devolution but that there is strong feeling as regards county councils. So why not return to them some serious, substantial power? That will mean accepting that there can be variation, just as the devolved Administrations can bring about variation, but I do not see that being a problem if it is clear that the basis of funding for the regions and the local authorities is entirely fair. For that we need greater transparency and a greater commitment to achieving effectiveness and efficiency in spending in the regions.

Photo of Baroness Tonge Baroness Tonge Spokesperson in the Lords, Health 5:12 pm, 12th November 2007

My Lords, I have been horrified recently by what seems to be a concerted attempt by the Government and their appointees to ratchet up once more the fear of terrorism among the people of this country. In particular, the police are calling for a longer period of detention without trial, without presenting any evidence as to why this is necessary. At the same time, unaccountably, the director-general of the CIA, like Pooh-Bah in the "Mikado", wishing to provide corroborative detail, tells us that there are thousands of teenagers in this country,

"being methodically and intentionally targeted by terrorists".

This may be true but I cannot be the only person in this country who mistrusts every word uttered on this subject since the invasion of Iraq. I learnt the terrible tale of Matilda by Hilaire Belloc very well when I was a child. Let us believe them all for once and then instead of finding ever more draconian measures to curtail our freedom in this country, let us address the causes of terrorism and what inspires people to support terrorists or even to become terrorists themselves.

Tony Blair was told many times that British foreign policy was fuelling terrorism here and abroad. His response was that Muslims have a completely false sense of grievance against the West. I disagree and not just for the reasons so eloquently put by the noble Lord, Lord Patel of Bradford. For many years before 9/11 the West knew of Osama bin Laden and his campaign against us. Many people had already died as a consequence of his ideology and perverted form of Islam. It is a perversion and bears no relationship to the cultured and gentle Muslims whom many of us know. Some people thought that the danger was being exaggerated, but he was an inspiration for many young Muslims all over the world. They saw him as a way of taking up arms against the degenerate and greedy people in the West who are grabbing all the world's resources for themselves in collusion with some Muslim partners in the oil rich Middle East while two-thirds of the world starved.

It is worth remembering that while 2,800 innocent people died at the twin towers on 9/11, across the world 24,000 people would have starved to death on that same day—many due to our inaction and many in Afghanistan where a famine raged at the time. So we bombed Afghanistan, killing thousands more.

Watching the latest "Robin Hood" on the BBC with my grandsons a couple of weeks ago, we saw the sheriff of Nottingham string Robin up over a pit full of snakes—do not ask me where they got the snakes from; it was a long time ago. Robin, cheered on by my grandson, shouted, "Kill me, and a thousand Robin Hoods will spring up in my place". Why did I think of Osama bin Laden? The bombing of Afghanistan and our foreign policy since then have spawned a thousand bin Ladens here and all over the world, all inspired by their sense of injustice and humiliation and their willingness to die as martyrs of their Islamic perversion.

We learnt nothing; we continued to follow America's lead into the abyss. I will not bore noble Lords with the mistakes made over the illegal invasion of Iraq. I still find it unbelievable that Bush and Blair, or at the very least some of their advisers, have not been called to account as war criminals. We now seem to be getting up steam to commit the same crime on Iran. Our mistakes are legion. We encourage conflict by still selling arms to countries that will use them for external aggression and internal repression. We say that we support human rights, but we fail to act on Guantanamo Bay and extraordinary rendition.

For decades, we have turned a blind eye to the gross abuse of human rights being committed on Palestinians by the Israeli Government, and we have failed to press for the suspension of the EU-Israel Association Agreement, when Israel is clearly in breach of its conditions. We support democracy; and we invade Iraq to impose it. That is an oxymoron if ever there was one. We refuse to recognise the democratically elected Government of Palestine. We lecture developing countries on corruption; and we cover up our own dodgy deals with Saudi Arabia. We uphold international law, but we allow Israel to break it, ignore UN resolutions and disobey the Geneva conventions.

We put sanctions on Iran for building up its nuclear capability, and we take no action against Israel, which has nuclear weapons and has not signed the non-proliferation treaty. We rightly condemn the actions of suicide bombers who kill so many innocent people, but we carry on bombing and targeting populations of civilians from helicopters and bomber planes at 30,000 feet; a cowardly way of waging war, it has always seemed to me. Finally, we welcome the King of Saudi Arabia on a state visit; an outrage to decent people in this country. Maintain economic and diplomatic relations if we must, but to hear Kim Howells trumpet that our two countries have "shared values" was disgusting.

We are introducing curbs on our rights and freedoms in this country to try to deal with Islamic extremists, and yet we give a royal welcome to one of the finest examples of Islamic extremism in the world. What hypocrisy! And we wonder why young Muslims have a grievance against us. I am ashamed of our Government. I had hoped for something different from the new Prime Minister and a recognition that to be safe at home our foreign policy must change. I want diplomacy practised with honesty and integrity, as I thought it used to be. I want once again to be proud of being British.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 5:19 pm, 12th November 2007

My Lords, I will confine my remarks to the question of the review being undertaken by Her Majesty's Government with regard to a possible amendment of the law relating to self-defence. I appreciate that no Bill has been published—one would not expect that in anticipation of the review—and that one is somewhat at a disadvantage in dealing with specific detail. But I am comforted by what was said of a reviewer of plays some 100 years ago—if he went to see a play, his review was "tolerable"; if he never saw the play, it was "brilliant". However, in no way do I regard myself as having anything of brilliance to say on this matter.

It is a matter of essential common sense that the law of self-defence is as perfect a development of the common law as has been achieved by the genius of our forebears and judges. Tinkering with it can raise expectations that will never be fulfilled and create division and doubt that do not exist at the moment. I have no doubt that public feeling has been whipped up sedulously by editors of tabloid newspapers and other persons; but I believe that the Government have blown hot and cold on the matter.

Three years ago, there was the well known case of the farmer, Anthony Martin, who, in his home, shot a burglar. There was great furore among people who, in the main, did not attend the courts or have any real experience of the criminal law. The Government quite properly reacted to that and came to the conclusion that it was not necessary for there to be any change of law. The then Prime Minister, Mr Blair, said that the law was sound in this regard. Yet, a couple of months ago, the Justice Secretary Mr Straw said the following at the Labour Party conference on 27 September. I hope that the House will bear with me while I read out this lengthy quotation, because it was obviously carefully thought out and crafted. He said:

"How each of us reacts if we encounter a burglar or a street robber has to be a matter of individual discretion—and there is a critical line between responsibility and recklessness. I know from personal experience that you have all of a millisecond to make the judgment about whether to intervene. In such a situation, the law on self-defence works much better than most people think, but not as well as it could or should. The justice system must not only stand up, but be seen to be standing up for people if they do the right thing as good citizens. So I intend urgently to review the balance of the law to ensure that those who seek to protect themselves, their loved ones, their homes and other citizens, know that the law really is on their side—that we back those who do their duty".

What exactly does he mean by,

"standing up for people if they do the right thing as good citizens"?

The law of self-defence has a wide and substantial ambit of protection for the person who defends himself or herself, or defends another person who is unlawfully attacked. There are many misconceptions about this law—the main one being that somehow or other a defence has to be raised by the defendant, once the prosecution has laid its ground. That is, of course, entirely incorrect. It is called the law of self-defence. It is a pity that it was not called the law of self-protection, for that matter, but there is no question of the defendant having to raise a defence and prove innocence on the balance of probability. The onus of proof remains with the prosecution from first to last. It has to satisfy a jury that reasonable self-defence does not exist in that case.

As the House well knows, there are two tests. One is the objective test—whether an invisible bystander might say, "That could not possibly be a situation of self-defence. The force used on one side is so utterly disproportionate to the other". Then the prosecution would be over the first hurdle. If the jury had a doubt about that, the case would end there. Even if they successfully negotiated the first hurdle, there would still be the subjective test of how the defendant saw events through his own eyes. Indeed, that is very much a part of the law as enunciated over the past 10 years. Smith and Hogan put it succinctly on page 329 of the 11th and current edition when they say that the general principle is that the law approves such force to be used in the circumstances as the accused believed them to be, whether reasonably or not.

Photo of Lord Vinson Lord Vinson Conservative

My Lords, will the noble Lord allow me to intervene? I am sure that what he says is absolutely right in law, but does he not agree that the public perception is very different? No doubt because of the high profile cases that have occurred, the public perception is that the law is against the defender of his own home. Therefore, it is probably very important that the law is clarified, as Jack Straw has suggested, following the Tory amendment in the House of Commons last summer.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, I fully understand the point that the noble Lord makes but how can you clarify it any more than is the case at the moment? It is a simple law; it is well understood by jurors and magistrates; there is nothing metaphysical about it; and I believe that it has stood the test of time. It is the common law developed over many centuries. If an improvement were possible, I should be the first to consider whether we should humbly put our heads together and make that improvement. However, I am as confident as I can be standing here that no such improvement would bring about any beneficial change in the situation. We would be tinkering unnecessarily at a juncture where populism had led us, rather than carefully and objectively analysing the situation.

Therefore, it is in no way strange that there is a strong and distinguished cohort of opinion among judges, barristers and solicitors against tinkering with the current situation, which is perfectly adequate and works well. In fact, in replying to the Justice Secretary's speech, the Police Federation put it this way:

"It is irresponsible for a government, either current or shadow, to use such a potentially dangerous subject to demonstrate a proactive stance on crime—not least the danger of raising public expectation when the reality is not achievable".

I think that that says everything.

Therefore, I very much hope that the Government will not seek to find some way or another of bringing this wholly unnecessary amendment to this and the other House. If the law was sound in 2003, what has changed since then? Perhaps on 27 September Mr Straw had imbibed of the heady wine of the hustings and his judgment was somehow affected by that. When I say that, I do not pretend that the fault lies with one side more than the other; many people on both sides of politics are tempted to go in the same direction.

I should not want it to be thought for a moment that I am squeamish in relation to burglary. As a judge, I regarded it, as I do now, as one of the vilest crimes, particularly the burglary of a dwelling house. Any members of a family who have suffered that experience will tell you that very often there is a taint in the house that lasts for ever for the family. Therefore, burglars do not commit offences against property but offences against the person and, with our prisons bursting at the seams, I would never wish them not to receive the condign punishment that they richly deserve.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour 5:30 pm, 12th November 2007

My Lords, in welcoming the gracious Speech, I start by saying that I totally agree with the noble Lord, Lord Elystan-Morgan. The law on the issue he discussed in relation to self-defence does not need changing. There is a fault with the procedures of the police and the Crown Prosecution Service. The outcry is not that the person defending his home has attacked the burglar perhaps a little more heavily than he should; it is often that he has found himself arrested, taken to the police station, interrogated and having to wait for months to appear before a jury. Invariably the jury, using common sense, which the noble and learned Lord mentioned, acquits the person who has been arrested after defending his own home or his person. The law does not need changing; we simply need to try to change the activities of the prosecution authorities, including the police.

To return to my original speech, I joined the Police Service in the 1960s, and I have listened to people saying how much better life was in the old days—whenever that was. Like taxes and death, crime will always be one of the certainties of life. I saw my task as being to reduce the effectiveness of criminals either by preventing offences in the first place, which is the ideal, or by detecting the offender and bringing him to justice, thereby deterring him and others in the future from embarking on a life of crime.

Throughout my service, superimposed on top of the criminal threat was the threat of the IRA terrorist, which was eventually exported to the mainland, and we had outrages in London, Birmingham Manchester and many other parts of Great Britain. Many people were killed and, indeed, the IRA nearly wiped out the Government in Brighton. In my judgment that was nothing compared to the current threat. We are dealing now with people who brainwash young people and send them into battle in the misguided belief that they are doing good and doing God's bidding, and if they succeed they will end in paradise. It is a battle of hearts and minds, as has been mentioned.

We heard recently from the head of MI5—not the CIA, which was mentioned by the noble Baroness—that UK children are being groomed for terror by al-Qaeda and that there is a clear determination to continue. Dealing with such a threat is very difficult, as you can imagine. If surveillance is converted into arrest too quickly, a prosecution can fail and the terrorist lives to fight again. If you are too slow, however, you can be too late to stop a tragedy such as we saw in London two years ago.

The Metropolitan Police have an excellent record in keeping London safe. The terrorist, however, has to get lucky only once, but there have been many arrests and convictions and there are still quite a number in the pipeline.

Then, of course, there is the possibility of mistakes, as we saw with the tragic shooting of Mr de Menezes, but we are dealing with decisions that most of us will never face. The notion of applying health and safety laws to an ongoing police firearms operation is as fanciful as applying it to the military on the battlefield. I also deplore the party-political demands on Sir Ian Blair to resign. The police resent being made a party political football, particularly when the judge made it clear in the trial that there was no personal culpability on any of the officers involved. It was a tragic error with great risks being taken by the officers themselves, and we should support the police and security services, not vilify them.

The measures dealing with counter-terrorism in the gracious Speech are to be welcomed in many respects. As I have mentioned, the threat from terrorism is very serious and sustained. It is important that we provide the police with all the tools they need to deal with the threat on our behalf. I do not wish to live in a police state and I am passionate about civil liberties, one of which is the liberty of our citizens not to be blown to smithereens. The threat is becoming increasingly complex with encrypted computer records to be examined, thousands of mobile phone records to be trawled through, scores of suspects to be interrogated, houses to be searched here and abroad, and the rest. Time is therefore of the essence and, in the vast majority of cases, the investigation can be completed in time. There will be circumstances, however, when that will not be possible, and it has been ably illustrated recently by the noble Lord, Lord Carlile of Berriew, the independent reviewer of terrorism legislation, referred to by the Minister. The noble Lord said:

"The reason there needs to be flexibility is illustrated by the recent case in Glasgow where an alleged suspect was severely burned. He could not be interviewed and the clock was running".

In the event the suspect tragically died, but what if he had not and had recovered on the 27th day? Time would have run out. Obviously, that is an exceptional case but there are others. We are at war and we need to adjust the law, with proper safeguards. Those safeguards are the independent judiciary and I fail to see why its involvement in the process does not provide the reassurance required. The activities at Guantanamo are shameful and do the United States no credit, but that is totally different from what the British Government are proposing by involving the judiciary in the process.

I applaud the fact that the gracious Speech talked of seeking a consensus on detention. For the life of me I cannot understand why the parties do not get round a table and agree on the way forward, as suggested by the noble Lord, Lord Carlile. I know that we are told that the case for longer detention has not been made, but some cases have gone to the wire. Of course, in such circumstances, the police will be forced to charge or release, which either way could result in guilty terrorists being released for want of sufficient time to secure the necessary evidence. The pressure could be reduced by the other related measure in the Queen's Speech by allowing further questioning after charging.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, the noble Lord, Lord Mackenzie, has just posited in a rather extraordinary way the possibility that a man driving a vehicle loaded with explosive material into an airport might have escaped prosecution because he was not interviewed within 28 days. That is the most ludicrous suggestion I ever thought I would hear in this House.

Photo of Lord Mackenzie of Framwellgate Lord Mackenzie of Framwellgate Labour

My Lords, I welcome the noble Baroness's intervention. She did not remind the House that I was quoting the noble Lord, Lord Berriew, who is the independent reviewer of terrorist legislation, so I suppose she could apply that description to his Lordship. I shall mention it to him next time I meet him. It wasn't me but the noble Lord, who I heard on the "Today" programme saying those very words. I have great respect for the noble Lord's views, particularly on terrorist matters.

I mentioned that pressure could be reduced by introducing the business of interviewing after charging. This has always been a problem for police officers as often while the accused is remanded in custody further evidence is discovered. I have changed my view on this. I used to apply the Judges' Rules religiously as a serving police officer, but it seems to me to be in the interests of everybody that if you discover fairly important new and compelling evidence nine months after a suspect has been charged, it should be put before the accused at an early stage and not left until the trial has started. It is certainly worth considering that, in certain circumstances, it might be in the interests of the accused and of justice to put these matters to the accused, even after he has been charged.

I hope that these issues are not made the subject of party-political wrangling. Consensus and unity strengthens our response to terrorism and we owe that to our citizens. I commend the provisions to the House.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative 5:39 pm, 12th November 2007

My Lords, I shall confine my remarks on the gracious Speech to the part which states:

"'My Government is committed to openness and accountability and to a strong Parliament able to hold the Government properly to account.

'Proposals will be brought forward to renew the constitutional settlement and strengthen the relationship between the Government, Parliament and the people'".—[Hansard, 6/11/07; col. 3.]

It is always a pleasure to follow the noble Lord, Lord Mackenzie. I was a bit disappointed by his remarks on Sir Ian Blair. The issue has nothing whatever to do with party politics but with the accountability which the gracious Speech refers to as the Government's policy. When my late noble friend Lord Whitelaw offered to resign because a man was found in the Queen's bedroom, it was not because anyone thought that he was responsible for that intrusion. Likewise, when my noble friend Lord Carrington resigned over the Falklands invasion, it was in order to demonstrate accountability. Frankly, for a serving police officer to turn to an elected authority and say, "Sack me if you have the power", flies in the face of the words of the gracious Speech.

The Government's own website sets out in some detail how they see this commitment being met and refers to the Green Paper The Governance of Britain, which was published earlier this year. The Green Paper talks about reinvigorating

"our democracy, with citizens given the means to participate in decision-making at every level".

How does that stand with the commitment in the gracious Speech to abandon the Government's manifesto commitment to allow the people to participate on the new treaty within the European Union—the constitution, as it was previously known? Listening to some of the speeches from the Liberal Democrat Benches, one might be wise to remember that there was a similar commitment from that party. As I am sure all noble Lords have found, everywhere one goes, one sees increasing cynicism about our parliamentary process. We have these fine words set out in the gracious Speech, but how will they be backed up by action to reflect their meaning?

The Green Paper also talked about giving,

"British people a stronger sense of what it means to be British, and to include them in a debate on the future of the country's constitution".

I was enormously encouraged over the weekend by the number of young people wearing poppies and participating in services around the country. Many of them were interviewed, and one of the things they talked about in the context of sacrifice was freedom. Every gracious Speech—this one is no different—has contained further measures to take away our liberties and freedoms and to increase the powers and intrusions of the state by means of further quangos and further powers given to the authorities. Part of being British is an appreciation of the balanced relationship between the state and the people and that relationship is being seriously undermined, with the best of intentions.

However, I shall concentrate on our constitution and in particular on the consequences of devolution. For the first time in my adult life I fear for the United Kingdom. I look at what is happening in Scotland, where we have a nationalist Administration who daily seem to think up a new wheeze to create the maximum irritation between England and Scotland. The latest proposal is to eliminate prescription charges; the issue of no tuition fees is already well known to many Members of your Lordships' House. The purpose of such proposals is to increase resentment. I notice that all the notepaper has been changed and the Administration are now referred to as the "Scottish Government". I even heard His Royal Highness the Prince of Wales talk about the "Scottish Government" the other day. There is no such thing; it is an invention of the Scottish nationalists, and they put it on the notepaper.

When I was Secretary of State, I was taken to task by the noble Lord, Lord Robertson of Port Ellen, because I put the phrase "tartan tax" in a government press release. He went to the Cabinet Secretary and complained about me putting a political phrase in a government press release—this was in the days when the press officers were independent. The press officer told me to take it out. I took it out and apologised. Now it is possible for a devolved Administration to change the "Scottish Executive" to the "Scottish Government", to reprint all the notepaper and to see the phrase used throughout Scotland. It is deeply worrying not because of the terminology but because of what it tells us about the current agenda in Scotland.

I find what is happening in England, where there is increasing resentment at what they see as an unfair constitutional settlement, even more worrying. This possibility was identified long ago by Tam Dalyell in his book Devolution: The End of Britain?. How prophetic that title may turn out to be.

Unfortunately I had to leave the Chamber and missed the speech of my noble friend Lord Trimble, but I know that he talked about the importance of sorting out this financial settlement. If the Government truly mean what they say—that they want to strengthen the relationship between government, Parliament and the people—we must deal with funding. The notes on the Downing Street website say that, by the end of the 2007 comprehensive spending period, the Scottish Executive's budget will be £30 billion. It was about £14 billion when I was Secretary of State, so that is quite a lot more money. The Government say that it is the result of the fair application of the Barnett formula. However, the Barnett formula is not about increasing expenditure; it was introduced to bring into line Scotland's advantage relative to England. The formula increases expenditure according to share of population. The point is that the base line is much higher and the world has moved on. The Government must have a comprehensive needs-based assessment for the whole United Kingdom, so that if you live in Wales—or Scotland, Cornwall or the north-east of England—the amount of money you get is fair and is seen to be fair. It is simply not acceptable to have a nationalist minority Administration spending money in a way designed to provoke the disintegration of the United Kingdom.

All of us make mistakes and I have made many. The noble Lord, Lord Robertson, told us that devolution would kill nationalism stone dead, but the effectiveness of that prediction is yet to be demonstrated. We are in mortal danger of the United Kingdom being broken. The nationalists have called for a referendum on independence. Why do the Government not take them at their word? There is no appetite for independence in Scotland or England. However, more years of the current situation and more government failure to address funding issues will create fissures which are wanted by no one but a tiny minority of people in the United Kingdom.

I urge the Government to observe these words in the gracious Speech:

"to ... strengthen the relationship between the Government, Parliament and the people", and to do two things. First, let us have fair funding that is seen to be so. Secondly, let the Government take the nationalists' question on Scotland, hold the referendum and let the Scottish people decide whether they want to be part of the United Kingdom. They will do so. Let us end this nonsense of separatism and division in our country. It is not in the interests of any Scot or any citizen of the United Kingdom.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Spokesperson in the Lords, Home Affairs 5:48 pm, 12th November 2007

My Lords, as my noble friend Lady Miller of Chilthorne Domer said, we have a relatively new justice and home affairs team on these Benches. This is my first opportunity as a member of that team, which she leads so ably, to interact with the noble Lords, Lord West of Spithead and Lord Hunt of Kings Heath. I look forward to many constructive discussions in the future.

I shall concentrate on just three areas today. I would expect to be involved as part of my party's justice and home affairs team in the first two, and I have been engaged in the final one for most of my adult life—our country's role in foreign affairs. I realise that the noble Lord, Lord Hunt of Kings Heath, will not be able to respond to that part of my intervention but I am confident that he will, in his ever generous manner, ensure that those thoughts are passed on to his colleagues who are concerned with these matters.

I shall deal first with the proposals on new terrorism legislation as foreshadowed in the gracious Speech and, today, by the noble Lord, Lord West of Spithead. In recent years this House has had a raft of Bills that impact on the so-called "trade-off" between liberty and security. Most noble Lords sympathise with the reasoning behind the rethink of our national and international response to the new threat of international terrorism, but many of us on these Benches argue for caution in changing the balance between the citizen and the state. The noble and learned Lord, Lord Lloyd of Berwick, has touched on the theme many times in this very Chamber. This theme dogged us through the debate on the Terrorism Bill 2006. I fear that it will be with us again in the forthcoming legislation.

We are told again and again that there is a balance between liberty and security and that it would be an irresponsible Government who did not do everything in their power to make their citizens more secure; that they would be evading their responsibility if they failed to protect their citizens from harm if they could. Thus, we are told, a little bit of liberty forgone in exceptional circumstances for a few individuals is all that is sought. Is that really all that is sought?

When an instrument is employed which is as sweeping in its net as the law, then it is not merely the practice that should concern us but the potential for altering the balance. When laws are sweeping in their remit, general in their application and cast as solutions to the issue of the day, then they may well go wrong. The use of the infamous Section 44 is a case in point. The generalised stop and search powers of the Terrorism Act 2000, which was cast with paramilitaries in Northern Ireland in mind, has become the basis on which many young men from minorities are singled out, primarily on the basis of their skin colour and appearance. That it leads to anger and frustration in that community is inevitable. I come from that community, so I should know.

So when we hear that legislation is again sought to raise the period of pre-charge detention to more than the current 28 days, we get a curious sense of déjà vu. We have been here before and the evidence, such as we have, points entirely in the other direction. We are told that there have been barely any cases involving even 28 days' detention. We are told that we are in a unique situation here in the United Kingdom because of our home-grown extremists and that hard times therefore call for hard decisions. Yet we see from Liberty's report today that we are unique among other democracies in our approach to law in this area and are unique even among countries with similar common-law traditions. We are leading the charge in the Anglo-Saxon world in this area and that is a dubious distinction.

When the Government come to take a decision on this legislation, they should spurn the seductive logic of a trade-off between a little less liberty for a Muslim minority and the need to keep the majority secure. As Liberty argues:

"Longer pre-charge detention is not only unnecessary; it is also unjust and potentially counter-productive. Allowing suspects to be held for over a month without charge would inevitably lead to injustice and would fly in the face of our basic democratic principles of justice, fairness and liberty. It would have significant implications for the individuals affected and would certainly not help to win hearts and minds. Even if released without charge, after over a month in police custody the suspect may well have lost their job, home and the trust of their community. After such treatment it would be no surprise if the suspect and their friends and family were less willing to assist the police and intelligence services with their investigations. Some may even be more vulnerable to radicalisation".

We will listen carefully to the arguments, but we will not freely give up our proud tradition of civil liberties for all in this regard.

I turn to criminal justice and our treatment of offenders. We know that we imprison more people, including women and children, than comparable countries. We also know that certain minorities are over-represented in the prison population. If we take Muslims as a case in point, there are three times as many Muslims in prison as there would be if the numbers incarcerated reflected the numbers in the population as a whole. While prison has to be the only solution for certain types of offender, one has to ask whether it is the right solution for the very many—nearly 82,000—whom we lock up. We are awaiting the Government's response to the report by the noble Baroness, Lady Corston, on women in the criminal justice system and the report by the noble Lord, Lord Carter, on the reform of the prison system. If I heard the Minister correctly, that report will involve a little more than looking simply at supply and demand in the prison system.

There is, however, another significant category of people whose situation also should move us towards change: prisoners with mental health problems. It is estimated that about 5,000 people held in prison at any one time have such poor mental health that they should not be in prison but should be undergoing treatment. That they are incarcerated in a system where staff have neither the skills nor the resources to care for them works against the interests of staff as well as the welfare of other prisoners.

That prison might be the answer for those with mental health problems defies logic. While it may be true that some people develop mental health problems as a consequence of incarceration, in either case the evidence shows us that the figures are climbing. In 2005-06, more than 22,000 incidents of self-harm were recorded. As we know, the suicide rate for young men in prison is 18 times that for those who are in the community. It is unquestionable that large numbers of prisoners have mental health problems. The question is how are we going to do give those offenders the treatment that they need? I understand that the Department of Health and the Ministry of Justice are proposing a consultation on how to respond to mentally ill people who offend. Can the Minister tell us whether Her Majesty's Government expect to increase the number who might be afforded treatment under the next NHS Plan? Will they also consider a significant increase in drug rehabilitation programmes aimed primarily at current offenders and ex-offenders? As I am aware that many noble Lords are expert on prison reform issues, I shall turn to my concluding remarks on foreign affairs.

I turn first briefly to Iran. Although we are working with our European colleagues on Iran, unlike in the Iraq imbroglio, we must nevertheless employ independent counsel. With the change of Government in France and Germany we are seeing a hardening of the European Union's position on Iran. The problem with ultimatums and deadlines in conflict situations is that they have ultimately to be matched with action. We would be well advised to see diplomacy as the art of persuasion in our dealings with Iran. It has an unpopular Government who will be removed from power in the course of time, but they will be removed only by the Iranian people. Most expert opinion tells us that Iran is still some years away from becoming a nuclear power. We should use this critical period to influence it away from that direction through all the multilateral, and indeed bilateral, forums available to us. It is tempting, particularly for the USA which has its own unhappy history with the country, to see Iran as part of a Sunni/Shia struggle for regional hegemony. It is tempting to see it as being behind the problems that we are experiencing in Iraq and Afghanistan. It is also tempting to see it as the real cause of Israel's insecurity. Those are all easy—yet flawed—positions. Iran has been helpful in Afghanistan. It could have been helpful in Iraq if we had employed a different discourse with it. And while it is extremely unhelpful in the Israel-Palestine dispute, we will do the situation little good by taking part in any preventive military action against it. Irrespective of our close relationship with the United States, if ever there was a need for an independent British foreign policy in this regard, today is the day.

In conclusion, we wish to see a future gracious Speech that reflects a happier security and international climate than that which we find today.

Photo of The Bishop of Salisbury The Bishop of Salisbury Bishop 5:57 pm, 12th November 2007

My Lords, the gracious Speech promised that the Government,

"is committed to giving everyone the chance to reach their full potential" and that, in a later clause:

"Alongside measures to meet rising aspirations, my Government will take further action to create stronger communities and to tackle terrorism".

How do the Government intend to balance those two admirable but apparently divergent goals: the goal of personal freedom and the community's good?

We know that the rhetoric of reaching your full potential is current among today's educational philosophy. We ought also to ask whether there are any limits to be set up the individual's pursuit of personal achievement. In particular, how does the language of personal achievement—the pursuit of what you want for yourself and the zip required for going all out to succeed, which the public culture and the television shows commend so warmly—marry with the desire, which I am sure that we in your Lordships' House all share, to build up a community of interdependent persons, and the value of putting the common good before all else at the heart of our culture?

In language imported from contemporary human rights legislation, which hovers around the question of what a modern British constitution might look like, there is much about rights but correspondingly less about duties. My questions relate to that paragraph in the gracious Speech that refers to taking,

"further action to create stronger communities", which is interestingly linked with tackling terrorism.

Do we want to see the creation of stronger communities merely as a means of combating terrorism? Is there not an intrinsic value, which any constitutional reform ought to have at its heart, in building a strong sense of community? Balancing the common good with the needs, capabilities and rights of individuals is central not only to such immediate questions as the length of time for which suspects might be held without being charged, but to the question of how our rights and responsibilities might be enshrined in any legislative form, as we move from a society held together by a network of unstructured relationships and ill-defined loyalties stemming from our current position as subjects of the Crown towards something more constitutionally enshrined.

How might we go about creating stronger communities? The creation of stronger communities must involve more than just meeting rising aspirations of consumer-conscious individuals, just as the creation of real security involves much more than just giving the police more powers. The creation of a more secure society depends much more on the quality of the relationships that people have and feel that they have with one another than on any imposed or contractual framework that might surround it.

Strong communities are sustained by the self-transcending of individual wills in their mutual relationships. Strong communities are sustained by commitment to the common good, and fundamental to our progress must be some serious commitment and outworking of what that means in terms that capture the imagination of a very wide range of people. I suspect that people are ready to be taken out of themselves and will respond to a vision of a better world, but where is that being crafted?

I return to a word that I used earlier: loyalties. People have less loyalty to institutions than they did, whether that is to the Government, the political cause, the police or even, probably, to the church. All those are the "them" and not the "us". That is especially true of the young. They have great loyalty to their peers, but institutional mistrust has reached alarming proportions. You can have loyalty to an ideal or to a faith and certainly to a person, but in that climate, can we really see people gripped by a sense of loyalty to a constitution?

What counts, as the waves of support for the victims of a disaster shows, is our continued response to human need. People support one another when there is a crisis, a death, a sudden death, a bereavement. That is when neighbourliness transcends the apparent differences in culture, race or religion.

So where are the points of natural community around which people may gather? I suggest they are where people are face to face with one another, able to sit down together and share their stories. That starts very early, in the playgroups and schools, as some of the bold experiments in Northern Ireland have shown. It continues wherever joint sponsorship or a broad coalition backs a common interest in local matters or, at any rate, in matters in which people feel that they have a personal concern. That does not necessarily mean local in the sense of parochial. For the young, matters of the future of the environment have that power, where loyalty to a constitution will, I suspect, not. What is it that draws people together at the 11th hour of the 11th day of the 11th month, in silence, to reflect on the relationship between our past and what people have been prepared to sacrifice in the common cause, and our future? Are those not ideals that we have in common? How shall we draw them out and test them to see where those true loyalties lie?

On this Bench, we are very ready to engage with those questions and to craft a sense of vision that is not just about political instruments and constitutions. Those questions demand that we do more than just meet the rising aspirations of competing individuals to have it better than everyone else. We badly need a vision that engages the generosity, the idealism and commitment to the common good of the British people which especially the young can recognise and work for.

Surely our Government need to show that they treat the British people not merely as consumers of goods and services provided by the state, but as persons who truly have that dignity of citizenship, the citizenship that is formed by our loyalty to the common good of all those who are made in the image and likeness of God.

Photo of Lord Jones Lord Jones Labour 6:07 pm, 12th November 2007

My Lords, like the noble Lord, Lord Trimble, I want to talk about devolution.

I heard my noble friend Lord Morgan say that devolution for Wales is unfinished. The devolved government debate began long before the establishment of the Celtic Parliaments or Assemblies. For example, I recollect a conversation in another place outside the Grand Committee Room on the Committee Corridor. It was between my noble friend Lord Healey, then a very new Chancellor of the Exchequer, and Lord Crowther-Hunt. The latter thought that he had the devolved government issues answered in a closely argued report that he had published. It was then a scene of euphoria in a crowded corridor thickly thronged with Cabinet Ministers, PPSs, Members of Parliament, and many, many journalists. Prime Minister Harold Wilson had just formed his third Administration. Mr James Callaghan subsequently and gingerly presented his devolved government proposals to Scotland and to Wales. The proposals failed.

The first Wales devolution ballot took place on St David's Day in 1979. In that campaign, I recollect a crowded meeting in Pontypool. As a Minister, I shared the platform, proposing Yes, with the then Cabinet Minister Tony Benn. We were shown respect, but not support. The Pontypool MP then was the formidable Mr Leo Abse, one of the greatest Back-Benchers ever. Mr Abse organised a Wales-wide campaign for a No vote and, I recollect, was joined by a flame-haired firebrand Member of Parliament, now my noble friend Lord Kinnock. During that campaign, I even recollect the then Lord President, Mr. Michael Foot, ending his speech from the conference platform in Swansea with the slogan, "Home rule for Wales". Be that as it may, matters were not successfully concluded.

Some years ago, the shrewdly pitched commission of my noble friend Lord Richard reported on constitutional matters pertaining to Wales. More powers were mooted for the Welsh Assembly, perhaps by 2011. My noble friend was just a little conservative in posting a possible date of 2011 for realising his proposals. After the election in Wales this May, the Labour Party and the nationalist party set up an accord to govern jointly in the absence of a majority. Now another referendum is mooted, most probably for well before 2011, to persuade the electorate to give the Welsh Assembly more powers. This is clearly of considerable importance to Westminster and to Britain, as it is to the people of Wales.

I believe that another referendum can be won, and with a fair majority, if the two parties campaign wholeheartedly for a yes vote. The portents are there. After all, the Labour Party and the nationalist party submitted a draft agreement to their membership. Interestingly, the activists in each party did not vote down the coalition document. The crux of the matter was that the Labour constituency parties and the Welsh Labour Party Executive backed the First Minister's propositions to go in with the nationalists. That was an historic moment in the long history of the Welsh Labour Party, whatever view one might take of the issue. It was a very big moment in the history of the Labour movement in Wales, perhaps also in the history of Wales.

In the debate on devolved government, I expect Scotland to make the political weather on this issue, and Wales to exploit the Scottish scene to its considerable advantage. That is the agenda. It is astounding that the nationalists in our nation have their hands on devolved power in Belfast, Edinburgh and Cardiff. I do not think that Lord Crowther-Hunt, back in 1974, would have expected this, not even 24 years on. It is an astounding political constitutional fact.

The Welsh Assembly is at the very least a qualified success. The First Minister is in the ascendancy. Eight years is but a blink in the 1,000-year history of the Welsh nation. Wales remains a mature democracy and is on the brink of further Assembly powers. The First Minister's campaign has been successful and the Assembly is discernibly gaining in confidence and flexing its muscles. When Her Majesty the Queen opened the Welsh Assembly in May, with the Duke of Edinburgh, the Prince of Wales and the Duchess of Cornwall in attendance, it was possible to discern the stirrings of nationhood in that impressive Cardiff chamber. Whatever one's view, it was discernible and very impressive.

The Government of the day might, as the noble Lord, Lord Trimble, hinted, enable both Scotland and Wales to have more powers to raise some of their own money in their own Parliament or Assembly, in the hope that the United Kingdom can be held together. Will the Government say where Westminster's Wales MPs stand in the likely context of more devolved government? The MPs work so hard; their role is hugely important in their constituencies, and they are part of the British national story. Before the 2005 election, the Secretary of State for Wales said that he had put the issue to bed for the foreseeable future. This is not the case; important issues are arising strongly. The question is: when will the Government declare their hand on these matters?

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion), Communities and Local Government 6:15 pm, 12th November 2007

My Lords, we were told last week in the gracious Speech that legislation would be introduced to strengthen security and tackle extremism. Earlier, the Minister said that the first role of state is to protect its citizens, and today we have heard much about the threat facing Britain and our response to it. I am responsible on these Benches for community cohesion and social action. What are social cohesion, social action and social responsibility? These questions fall under the wide-ranging disciplines of political science, theology and sociology, but underpinning them all is a question as old as humanity: how do we live together, and what do we put back into the communities in which we live?

In this country, we have been here before, whether in the conflict between Catholics and Protestants, whose fallout we are still living with today, or in the integration of eastern European Jewry in the last century. Each time, Britain has been able to rise to the challenge and sustain our coherence and unity with a distinctively British approach—calm, thoughtful and reasonable—to potentially explosive issues. We have done so through a combination of a steadfast faith in our institutions and values—such as freedom under the rule of law, pluralism and tolerance—and because society, not only the majority community but the minority community, was prepared to stand together as one. There is no reason to think that we cannot do the same today. The challenge today may have its own specific characteristics, but our approach should be the same. In that context, I am concerned by the direction that the debate on terrorism and cohesion has taken recently. It is time for a more British approach.

First, we must not fall for the illusion that the problems of community cohesion can be solved simply through top-down, quick-fix state action. State action is necessary, but it is not the only thing and it is insufficient on its own. As my noble friend Lady Neville-Jones has implied, this Government feel that we can legislate our way out of trouble. That is simply not the answer. Secondly, it must be the right kind of action, expressed calmly, thoughtfully and reasonably. To me, multiculturalism means people of different faiths and backgrounds living together as equal members of society, with a sense of belonging and a shared outlook. Unfortunately, however, the Government's doctrine of multiculturalism has undermined our nation's sense of cohesion because it emphasises what divides us rather than what brings us together. It has been manipulated to entrench the right to difference, a divisive concept, at the expense of the right to equal treatment despite difference, a unifying concept.

In seeking to correct this mistaken approach, however, we should not lurch towards a simplistic promotion of Britishness that is neither in keeping with our traditions nor likely to bring our communities closer together. We on this side of the House do of course believe that we need to ensure that every one of our citizens can speak to each other in our national language, English. Of course, we need to ensure that our children are taught British history properly to enable them to have a proper understanding of our great democratic institutions and how they came to be as they are, and it is important to create more opportunities for celebrating our sense of nation. But offending our war heroes with a proposal for a new Veterans Day when we already have Remembrance Sunday; suggesting a motto for Britain—a few cheap words to encapsulate our nation; suggesting that we put flags on our lawns; or even suggesting, as the Institute for Public Policy Research did last week, that Christmas should be equal in this country to every other religious festival, is simply not to understand the issues. Those and similar clunking attempts to address the complexities of community cohesion show a serious misunderstanding of the scale of the challenge and the shape of the solution.

We need to go much deeper than this if we are to address the alienation and division that exist in our country today. We must start by having an honest debate. This side of the House will not shy away from dealing with the tough issues: the impact of immigration and the need to control numbers; the threat of the far right; the divisive effects of the catastrophic failure of state education in many parts of urban Britain; the impact of divisive funding regimes which pitch communities against one another; the influence of those who twist faith to support violence; the cultural attitudes that exclude women from mainstream society; and the impact of foreign policy on domestic affairs.

We have seen a dangerous muddling of concerns: community cohesion, the threat of terrorism and the integration of British Muslims. Promoting community cohesion should indeed be part of our response to terrorism, but cohesion is not just about terrorism and it is certainly not just about one community. Of course, promoting integration will achieve a more secure society, but too mechanistic a connection between these objectives will make it harder to achieve both, by giving the impression that the state considers all Muslims to be a security risk.

Certain principles must guide us in attempting the way forward. First, we must accept that we cannot bully people into feeling British; we have to inspire them. Instructing parents to spy on their children, as suggested by John Reid, does not inspire, nor do the drink- and drug-fuelled scenes which are now all too familiar in some of our town centres. Secondly, we must appreciate the nuances of communities and not treat them as homogeneous blocks represented by self-appointed community leaders. We need to engage on the issues that face communities and not on the basis of their race or religion. We need to go beyond the obligatory handshakes outside places of worship, and we must be wary of those who claim to speak on behalf of many. As Milne warned in the Guardian last week:

"Picking people who are off the map of Muslim opinion to speak on British Muslims' behalf is a dangerous game that will do nothing to increase public safety".

Thirdly, we must ensure that government funding for deprived communities is on the basis of need and equality and not on the basis of religion race and religion. Funding earmarked and "siloed" from the centre can too easily miss local priorities and create the impression of one favoured group over another.

On the question of funding, will the Minister clarify the funding for community cohesion and extremism? The Comprehensive Spending Review states that £100 million will be allocated over three years to support communities and reject and condemn violent extremism. On 6 October this year, the Secretary of State for Communities and Local Government announced £50 million over three years on community cohesion and integration. On 31 October this year, the Secretary of State for Communities and Local Government announced that her department would spend £70 million in stepping up work to build resilience to violent extremism. Is that the same money being announced again or have individual funds for individual tasks been detailed on those three separate occasions?

The question of social cohesion is as much one of social justice and social inclusion. Cohesion is as much about rich and poor—those included and those left behind—as it is about race. Therefore, marginalised and deprived communities who happen to be white must also be included in our vision of community cohesion. Fairness will be our most powerful weapon against fragmentation. Turning the situation around will require patience. We must be calm, thoughtful and reasonable: that is the British way as I know it, and we must challenge anyone who differs.

Photo of Lady Saltoun of Abernethy Lady Saltoun of Abernethy Crossbench 6:24 pm, 12th November 2007

My Lords, not many Scottish Peers seem to be speaking this debate and it seems to me that, in this tercentenary year of the much shrunken Union of the Parliaments, it might be timely to say a few words about devolution and independence and allied subjects. These have given rise to problems about which there was, alas, nothing in Her Majesty's gracious Speech. Here I must declare an interest as a Scottish Peer who lives in Scotland.

I have listened with great interest to the noble Lords, Lord Trimble and Lord Forsyth, and I agreed with very much of what both said, although not everything. Before 1707, when Scotland last had its own Parliament, that Parliament was responsible for every aspect of government in Scotland, from taxation, law and order, defence and foreign affairs to the design of mousetraps, although Governments did not waste their time on such trivia in those days. But the present devolved Parliament—or Government as the First Minister has decreed it is to be called—has no responsibility for taxation, defence, foreign affairs or, for some dotty reason, social security, not to mention a whole host of minor matters, all of which have been reserved for the Westminster Parliament to rule on.

A better recipe for friction and annoyance can scarcely be imagined and the amazing thing is how little of that there has been to date. One of the principal sources of friction is the famous West Lothian question. This Government were amply warned about it—I seem to remember it starting right back in the 1970s—by Tam Dalyell, the then MP for West Lothian, which is why it is called the West Lothian question. The chief problem lies in England where English MPs naturally find it intolerable that Scottish MPs should be able to vote on English domestic matters when they, of course, cannot vote on Scottish domestic matters, which have been devolved. A way through this dilemma must be found and found quickly, and I urge the Government to give it priority, before this particular sore festers worse than it already has.

A rather sensible suggestion has been made by Sir Malcolm Rifkind: that an English Grand Committee should be formed which would probably involve English MPs sitting in the Commons Chamber on certain days to deal with English domestic business, and the whole House sitting on other days to deal with United Kingdom business. It would not be easy to organise, but, given good will, it could be possible. The suggestion must be a good one, because it was ridiculed by the First Minister, Mr Alex Salmond, probably because it would have helped to put an end to the friction with England on which the SNP thrives.

The other principal source of ill-will is finance. Is the block grant to continue at the present level? If it does not, the financial squeeze that that will represent will be manna to the Scottish Nationalists. I know that English MPs are concerned that their constituents are aggravated at seeing higher expenditure per head in Scotland than in England. That is entirely understandable. But continued higher expenditure per head in Scotland than in England may be the price which has to be paid to preserve the Union.

Perhaps the Government do not wish to preserve the Union, whatever they may say to the contrary. Sometimes I wonder. Perhaps that is why they continually do silly things, such as reneging on the compensation to Scottish farmers for the losses they suffered due to the recent outbreak of foot and mouth disease, which was entirely the fault of that incompetent English ministry, Defra. Perhaps the English do not want to preserve the Union, although I think that it has been of great mutual benefit for 300 years.

Apart from anything else, like peace between the two countries, there is a large republican element in the SNP. Although the First Minister, Alex Salmond, has said that he would be happy for Scotland to remain a monarchy for as long as the Scots wish it to be so, there is always that caveat—as long as the Scots wish it to remain so—and the republican element. I do not want to end my days living in a republic.

As a result of the Scottish parliamentary election held last May, the Scottish Nationalists won by one vote and Alex Salmond became First Minister. The SNP had approximately 30 per cent of the Members and the other parties had approximately 70 per cent of them. Very soon Alex Salmond said that it was his intention at some stage in the present Parliament to introduce a Bill to enable a referendum on independence to be held in Scotland. What did the opposition parties do? They threw up their hands in horror and squealed. What shortsighted fools! The only reason that the SNP had the largest number of members was not that the people of Scotland wanted independence—at that time or at the present time—but that they were absolutely fed up with Labour, did not trust the Liberals and were not prepared to vote Conservative, even to get Labour out. A fairly recent poll showed that support for independence was still at a pretty low ebb.

All that the opposition parties had to do, which I think that the noble Lord, Lord Forsyth, has mentioned, was unite, and, with the huge majority that they would have had united, introduce a Bill to hold a referendum straight away, agree on the question and on an early date for it to be held. They could not have failed to get it through. We could have had a referendum soon, while there was still little support for independence. Having had one, it would not really be possible to hold another one for at least 10 years, if not longer, and the SNP's teeth would have been drawn. But party political advantage and bickering was apparently more important to the opposition parties than the good of their country. Meanwhile, the SNP Government continue to needle the English and are making a lot of admirable proposals with which the Scots are delighted, or will be if and when they materialise. They will gradually become fonder of the SNP. The only thing which baffles me is how it will all be paid for. We shall see.

Alex Salmond says that if Scotland were independent, she would be one of the richest small countries in the world—I think he said that she would be richer than Luxembourg. I do not believe that, but neither do I believe that she would be as dirt poor as Labour and the Conservatives say. Probably the truth lies somewhere in between. As no one has access to all the figures, I do not see how anyone can know. A great deal would depend on what kind of settlement was made between England and Scotland, particularly in regard to oil and where the boundaries were drawn in the North Sea. As things are, there is room for endless bitterness and acrimony on both sides, which could endure for generations and even, should we happen to have another trigger-happy Prime Minister, lead to war, which was almost the normal state of relations before the Union. Equally, there is room for the generosity and understanding which would result in a long-lasting friendship and prosperity for both. I can only implore politicians on all sides to think very seriously about this, because I am afraid that I believe independence will come sooner or later—and sooner, if we go on as we are.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat 6:33 pm, 12th November 2007

My Lords, I want to call attention to a grave threat to the rule of law in this country, a threat for which the Government are responsible. First, I declare an interest as chair of the council of JUSTICE, the main object of which is the advancement of the rule of law and human rights. What is this threat to the rule of law? It is not terrorism, corruption or disregard of the law by the Government. It is starvation by withholding the finance needed for support of the rule of law, which is an essential part of democracy. Indeed, it is more than that: it is an essential precondition to democracy. But the rule of law cannot be effective without real access to justice, which involves giving help to those who cannot afford it from their own pockets. We must not forget the Victorian judge who said, with powerful irony, that the courts, like the Ritz Hotel, are open to all.

One of the great achievements of the Attlee Government, in creating the welfare state, was to introduce legal aid. This, for the first time in our history, gave poor people access to justice, and not just to people on state benefits, but also to people who were not at the benefit level but were on low incomes. At its peak, it protected perhaps 30 per cent of the households in this country. That worked for a generation and then things started to go wrong. Legal aid became too expensive. Lawyers undoubtedly bear some of the blame for this and some steps had to be taken. It was right to cap spending on civil legal aid. It could not be left as an open-ended liability. I reluctantly accept that the right to finance civil action for damages had to be met through conditional fee agreements.

But the Government have squeezed, are squeezing and intend to go on squeezing legal aid, particularly civil legal aid. They have not ring-fenced funds for civil legal aid, with the result that open-ended spending on criminal legal aid and immigration increases and spending on civil justice goes down. Eligibility levels are reduced, so that legal aid is now in effect available only to those on state benefits. It is essential that the cost of civil legal aid should be ring-fenced so that it is not liable to be affected by increases or possibly decreases in the cost of criminal and immigration legal aid.

Criminal legal aid is necessarily open-ended. Article 6 of the Human Rights Act and the legal traditions of our country require that legal aid must be provided for accused persons in criminal cases who cannot pay for it. But if the cost of criminal legal aid goes up, the burden surely should be borne by taxpayers as a whole and not by those who, as a result of the decline in civil legal aid, will be deprived of access to justice for family or other civil proceedings.

Legal aid is essential for family cases and for other matters of great importance to the people involved, such as housing, welfare and discrimination. We already have a problem with legal aid deserts where specialist advice and advocacy are not available in some legal fields even in major cities, which is likely to get worse. The continuing squeeze on legal aid will mean that many solicitors will give up family law work, leaving parties to represent themselves. Anyone familiar with the courts knows what that means.

In research conducted by the Law Society in 2004, only 7 per cent of trainee solicitors saw their careers as likely to involve legal aid. Since then matters have become even worse. A recent survey shows that the average profit margins of criminal legal aid practices range from 2 per cent down to -6 per cent. The survey also predicts that at least 800 firms with legal aid practices are likely to close or merge as a result of the implementation of the changes introduced by Lord Carter's review. Legal aid is likely to be concentrated in a small number of large firms. Black and minority ethnic firms will be particularly hard hit by this because of their small size. Smaller towns serving the countryside will also be hard hit. The move towards fixed fees for cases, without regard to their length and difficulty, is likely to have a serious impact on the quality of the work being done in the more complex cases.

But legal aid is far from being the only problem. In the past few years we have seen an increase in court fees far above inflation. The Government are trying to recover the full cost of providing court services. That is all right for the big commercial cases because they can afford it, but it is another major deterrent to claimants who are not eligible for legal aid, but are not rich. It is surely the duty of the state to provide a legal system. Until 1992, court fees did not include judicial salaries, which were paid out of the Consolidated Fund. Until 1982, the cost of court buildings was paid by the Government. We should revert to those arrangements. Access to justice should not be restricted by court fees aimed at full cost retrieval. Indeed, I understand that last year the judicial system actually made a profit. That is like making NHS patients pay the full cost of life-saving but expensive drugs, not just prescription charges.

However, our court system is seriously under-resourced. Court buildings need something of the order of £100 million for refurbishment, but they have to concentrate exclusively on emergency repairs. Improvements such as separate waiting rooms so that prosecution and defence witnesses do not have to sit together are simply not happening. Staff are underpaid in comparison with alternative employment, and as a consequence there are serious problems with the recruitment and retention of staff.

Finally, there is the new and possibly even the greatest threat; that is, the demands of the Prison Service. I have long supported, as has my party, the creation of a ministry of justice which would bring responsibilities for criminal law and civil law under the same roof, but I never expected the Ministry of Justice to be responsible for prison services as well. That is a great mistake and is the result of the rushed creation of the Ministry of Justice in a matter of days without consultation appropriate for such an important constitutional change. Prisons will account for well over half of the spending of the Ministry of Justice, and well over half the staff. The funding of prisons, I believe, should be completely independent of spending on legal aid and the courts.

If there is no ring-fencing, we cannot go on with open-ended spending on new prisons. We will need to put a limit on prison capacity and bring an end to the constant ratcheting-up of sentences, which has led to the overcrowding of prisons. Over recent years the Government have constantly reduced in real terms the budget of what used to be the Department for Constitutional Affairs. The latest forecast for the Ministry of Justice, in its spending review for next year, is a reduction of 1.7 per cent in real terms. The Government's invariable reply to any complaint is three words: "health and education". Of course spending on health and education is essential, but not at the cost of everything else.

The rule of law is at the heart of the constitution and access to justice is an essential element in the rule of law. From the so-called Access to Justice Act 1999 until now, the Government—led until last June by a lawyer—have been undermining access to justice. We now have a new Lord Chancellor. He is a lawyer and a senior politician. It is time for him to reverse the decline in access to justice and I call on him to do so.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 6:44 pm, 12th November 2007

My Lords, I start by welcoming many aspects of the gracious Speech. I have had a long engagement with constitutional issues. I was the chair of Charter 88, the organisation which spearheaded constitutional change throughout the 1990s. We campaigned then for a Bill of rights, freedom of information, reform of the Houses of Parliament and so on, and many of those campaigns became part of Labour's platform in the 1997 election, leading to considerable reform by Labour in government. The reforms were not always as thorough or as ambitious as we would have hoped, but credit is due because much came to pass.

More recently, I chaired the Power inquiry, which produced a report on the state of British democracy. We looked at the reasons why people are so disaffected with regard to formal politics, why they are voting in fewer numbers and why they are so deeply unwilling to join political parties. The expression of profound distrust of politicians and the political system led to very carefully considered recommendations by the inquiry and were included in what became known as the Power report. The recommendations for political and constitutional change aim to produce a revitalised Parliament and re-engaged citizens. It is heartening that all of the political parties recognised the force of much of the argument, and it is particularly uplifting that the new Prime Minister has made these issues one of the central themes in his vision for the future.

The architecture of our democracy, like any great structure, suffers at times from subsidence, from wear and tear, and from erosion. Renovations and underpinning are necessary if our democratic structures are to survive intact and function well in the 21st century. Unlike some before him, and as has already been mentioned, the present Prime Minister is an intellectual who really does know his history. He has read books and understands why foundations should be based on principle and why there should be checks and balances. He knows that power has to be shared. It is unacceptable for the Prime Minister and the Executive to hoard power, and therefore we need to see a strengthening of Parliament and of local politics. The Prime Minister knows that if politicians are to be trusted, they have to trust us, the citizens.

On the constitutional front, there is much to celebrate in the proposals referred to in the gracious Speech. Some have almost gone unremarked in the media. The intention that Parliament should be involved in each international treaty—that would include all the European treaties—seems to draw on the experience in the United States; that is right. We have the agreement that Parliament should vote on a decision to go to war. We have the reform of the role of the Attorney-General. This is an office which in my view has been brought into disrepute in recent years. Any new legislation should make it clear that the incumbent is not the personal counsel of the Prime Minister, but serves the interests of the nation. The incumbent should play no role in deciding on whether a prosecution proceeds or not. The Cabinet should see full and complete advice, and not shortened, reappraised versions. The advice in the Iraq war was a sorry episode, and I need say no more.

From the public evidence sessions held for the Power inquiry, it became clear that people are concerned about the buying of influence, and they want to see a reform of party funding. I am glad that the Government are going to act on those concerns and I hope that they will adopt the Power inquiry proposals. The plan to greatly enhance freedom of information should be seen as a source of celebration because it really does place greater power in the hands of the citizen. We have seen a serious retreat from freedom of information since the original commitment by my Government, with threatened increases in pricing and limits to be put on the number of requests. To the credit of the Prime Minister, we are seeing a genuine change of direction on this vital piece of people empowerment.

There are other proposals in the gracious Speech which I welcome which are being dealt with in this House on other days. I mention the proposals to extend full-time education to the age of 18, which I think will tackle social immobility. There is the extension of flexible working for the parents of young children, and the drive to build more affordable homes. All this adds up to the beginning of a step change. However, after the Prime Minister presented his credentials as someone who believes in liberty, it is a great disappointment to see us contemplating yet another extension of detention without charge. Indeed, I was very disappointed to hear him say that he supports the plans for identity cards. If the Prime Minister wants to talk of vision, there is none greater than the vision of liberty. New Labour's record on civil liberties has been lamentable, and I want to warn the Government that this House will strongly resist any extension of detention powers. I do not need to rehearse the arguments as to why this cavalier disregard for principle is so counter to our hard-won rights and our traditions of freedom.

A search is currently under way, conducted by the Lord Chancellor, to unearth British values. One of the most precious of our values is justice, our belief in fairness and our regard for the rule of law. I hope we revisit these values and that that information impacts upon the Government's decisions on the front of civil liberties. Most of the world took their lead from us on safeguarding individual freedom, and the protections of those arrested and accused were built-up here in Britain. We set the standard and now we pathetically are abandoning what we secured through painful experience.

As many know, I do these cases where terrorism is alleged—I am a lawyer practising in the courts—and not one suspect has yet been held for the maximum of 28 days and not one person has escaped charges because of the limit. I have first-hand experience of exactly what is involved in evidence gathering. I spent all of last year in Operation Crevice; I spent the whole of the first part of this year again involved in trials alleging terrorism. It is right that the world has changed. Investigations are more complex and involve arduous work for the police, and I can say at first hand that the work of the police and the security services has been truly impressive.

Most of the current wave of terrorist cases involve huge quantities of material stored on computers. That is not surprising; it is the nature of our young. Most of them have computers and they collect and share information. I am afraid that that information is often like pornography—the sharing of beheadings; the sharing of information about suicide bombings; the sharing of material that incites radical opinion. In a court case just before the summer, a police officer in the anti-terrorist squad explained delays in disembowelling the contents of computers in the case by pointing out that there were less than 20 officers with the required expertise in the high-tech unit. That makes a nonsense of the demand for extensions of time. Before any consideration whatever is given to eroding civil liberties, all practical steps to deal with such problems should be exhausted. As the Human Rights Committee of both Houses has said, the test should be necessity. The police should be recruiting the young with computer skills from our colleges and universities and getting them on board in these investigations, and they should be given the resources to do so.

People are being frightened into accepting these erosions of liberty on stories that are wholly inaccurate. We heard one of them in the House today when the noble Lord, Lord Mackenzie, gave an example. He quoted the noble Lord, Lord Carlile, apparently. While I am against convicting people on hearsay, the story was rather alarming because what was being presented was the notion that the man who drove a vehicle loaded with explosives into Glasgow airport could not have been questioned by virtue of the fact that he was suffering from burns, and therefore might have been released after 28 days. That is ridiculous because hundreds of people in that airport saw it happening. There were eye witnesses to this event; we all saw it on our televisions. There was no possibility of there not being evidence on which charges would be brought.

I remind the House that according to Home Office data, of 1,228 individuals arrested under anti-terror law over six years, 87 per cent were not charged with terrorism offences. We should be concerned about what the meaning of this might be in the fullness of time because, with the pressure of time on the police, it is right that there will be innocent people detained for lengthy periods equivalent to four-month sentences.

What we do in Parliament has reverberations in our Muslim communities. What we do in this country has reverberations around the world. Our campaigns for hearts and minds across the Islamic world will be further damaged by these changes. I agree entirely with the noble and learned Lord, Lord Lloyd, when he described why post-charge questioning is also wrong. Issues of liberty are so important that they go beyond politics. That is why in the past I have taken such a strong position opposing government policy when there is an erosion of civil liberty, and it is why I will continue to do so.

M

Baroness Kennnedy has my utmost respect,
our civil liberties are much to precious to be
eradicated by laws which time and time again are proven to be more about control than protection.

ID cards gave ultimate power over people's
individual freedom to the authoritys in Germany
pre world war II. It would be a travesty if any
British Government were allowed to even introduce
them.



Many people in this country are well educated and
informed about how our civil liberties came about.
It would be foolish for anyone to underestimate the
British people's feelings on this subject regardless what statistics are plucked out of the air to justify
the will of a few people.

Submitted by Margaret Rowe

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs 6:55 pm, 12th November 2007

My Lords, the Home Office, in its previous incarnation, had more than a sufficiency of legislation over the past few years, so it is not surprising that it has run out of steam this year. That is, of course, with the important exception of the counter-terrorism Bill, about which my noble friend Lady Neville-Jones, the shadow Minister for Security, has so ably spoken already.

Despite what the noble Lord, Lord West, said in his opening remarks, one of the glaring omissions in the Queen's Speech was the expected immigration Bill, which, it was anticipated, would give some strength to the Government's stated intention of limiting the number of migrants coming to this country. The noble Lord pointed to the miracles which will occur from the e-borders provisions, which will be 95 per cent efficient by 2010, but he did not mention that these will apply only to those who live outside the European Union. He also extolled the virtues of the recent UK Borders Act. I am going to call it the United Kingdom Borders Act because I am getting terribly tired of the synopsis of "UK". This was for us largely unexceptional but did not provide for the inclusion of police within the borders force. While giving immigration officers extra powers, we felt, and continue to do so, that it will not have the teeth that a border police force would have. This leaves a substantial lacuna.

It is notable and welcome that at last it is possible to have a reasoned debate on the subject of immigration and asylum without being accused of racism. As Sir Trevor Phillips, chair of the Equality and Human Rights Commission, said about the excellent speech of my right honourable friend David Cameron:

"For the first time in my adult life I heard a party leader clearly attempting to deracialise the issue of immigration and to treat it like any other question of political and economic management".

It will be my intention to emulate these tones as we discuss this sensitive issue now and in the future.

The draft citizenship Bill, I hope, will be concerned with the responsibility which migrants, given a home and security here, have to all their other fellow citizens in the context of the need realistically to be able to contribute to the life and economic welfare of the country. The excellent speech of my noble friend Lady Warsi, concentrating on social cohesion, has underscored that point. This is particularly important if the figures of migrants coming to this country, both legally and illegally, are not to be contained.

My noble friend Lady Neville-Jones referred to the counterterrorism legislation. This comes hard on the heels of the report from the Independent Police Complaints Commission on the disastrous outcome of the exercise which resulted in the killing of Jean Charles de Menezes on 22 July 2005. This morning I tabled a Private Notice Question to ask what the Government were going to do to strengthen the leadership of the Metropolitan Police in the light of the judgment on the health and safety charges brought over the actions on that day and the Independent Police Complaints Commission report. Unfortunately, the Question was not considered to be of sufficient urgency to warrant being brought forward today. I do not know whether we will get an opportunity to discuss the report but it is of serious import to the way that the Metropolitan Police moves forward and recovers from the "corporate failures" identified by the judge at the trial; to ensure that lessons are learnt from the mistakes that were made on that day; and to ensure that the systemic failings in the operation leading up to the events on 22 July are all identified and rectified.

Individual officers were rightly exonerated from blame for what happened, and we are glad they were, but there are questions at least about whether the necessary planning, training and operational tactics required will be in place to ensure not only that such a disaster cannot happen again, but that there is a clear blueprint to ensure it does not. Whether that can be done under the current leadership of the Metropolitan Police, and whether faith in the service can be restored under him, is a question I would have liked to have asked the Minister outside this debate. Denied that opportunity, however, I am raising it now. My honourable friend David Davis in the other place has called on Sir Ian Blair to resign because of the identified failings, and it would have been helpful to have had a view in this House on why that demand has so far been rejected by the Home Secretary. Perhaps the Minister will do so in his reply tonight.

Of a lesser order, but no less a matter of public concern, is the whole matter of community safety. The Criminal Justice and Immigration Bill brings in provisions for individual anti-social behaviour orders to be reviewed on a yearly basis. At some stage I hope there will be a review of ASBOs to see how they are working and how effective they are in reducing the anti-social behaviour, largely by young people, that causes such anxiety to people, particularly on large housing estates, but also on the streets. We have to know whether the orders are being collected as "badges of honour" or whether they are leading to those subject to them being given the boundaries that deal with their annoying behaviour and help them to a more profitable future. Evidence suggests that the orders are not the panacea it was hoped they would be, and that the general problem of what we might call our "feral youth" is not lessening. We may have an opportunity to consider this during the passage of the Bill, in which I look forward to participating.

Photo of Lord Laird Lord Laird Crossbench 7:02 pm, 12th November 2007

My Lords, I am delighted to have this opportunity to discuss some actions that concern Northern Ireland. There can be no doubt that almost everything has changed in Northern Ireland over the past 15 years. Most of the change is for the betterment of the Province's people and I applaud those who have contributed to bringing about the massive improvement. However, dark clouds still remain not too far from the centre of political life in Northern Ireland. Terrorism of all types has not gone away, even if it has been much reduced. Recent tragic events have brought home in true relief the problems that still remain.

One major difficulty is that the Army Council of the IRA is still intact and active. Many of the major units of that organisation are still in operation. Another difficulty is that the plot unveiled by a former Minister of Justice in the Republic, Mr Michael McDowell, is still ongoing. The plot—I referred to it two years ago in your Lordships' House—is the takeover of the Irish Republic's main establishment by placing in its ranks IRA supporters as sleepers or moles. Mr McDowell indicated that the republican movement has already placed people in the top positions of authority: the PM's office, the police force, the army, major sections of the Government and the media.

Recently strange things have happened, such as the hard line taken by the Republic's Government against Protestant schools and the ban by the Irish Rugby Football Union after almost 90 years on British symbols at appropriate Irish international rugby matches. All this runs contra to the new atmosphere we all want on the island. In the case of rugby I, along with many in Ulster, am sickened at the introduction of politics into sport. I plead with the IRFU officials to introduce a policy of total equality for all in their dealings with the supporters and players and, by so doing, to remove politics.

One of the most serious incidents has too many shades of the past for us all: the brutal murder of Paul Quinn. It resulted from a dispute between Paul and a son of Vincent Traynor, a local IRA chief. Paul Quinn and some other youths from the area were involved in activities that did not go down well with the senior republican leadership in South Armagh, especially as this new breed of republicans is defying the leadership. It is now quite clear that Vincent had oversold the case against Paul.

Several weeks ago Traynor asked the republican leadership, including Peter and Patrick Quinn from Bog Road—no relations—who run most of the illegal fuel laundering plants in South Armagh for the IRA, to have Quinn executed. After consultation with PJ Carragher and his son Michael, the well known murderous sniper, Thomas "Slab" Murphy, the Provisionals' commander in the area, Sean Gerard Hughes, known as "the Surgeon", and James McArdle, permission for the execution was given. Almost 20 republicans were present at the murder as executioners, lookouts, drivers and so on. The eight or nine who conducted the execution were dressed in boiler suits and wore surgical gloves. All were IRA or former IRA members. It took almost half an hour for Paul to die. Every major bone in his body was broken. During the execution he cried for mercy.

Following the murder and the outcry from all parts, a meeting took place in Cullyhanna on Friday 2 November. Although "Slab" Murphy did not attend, a trusted lieutenant was there to speak on his behalf. To quell local discontent, and under pressure from the top, "Slab" offered to put a large amount of cash into the Cullyhanna area in the hope that buying people off with blood money would stop a rift between republicans in South Armagh. The involvement of the republican leadership in South Armagh in the planning, commission and now cover-up of this murder means that it is directly implicated. "Slab" also ordered that no one in the community was to speak to the Garda or PSNI. He was taking full responsibility for the incident because his close associates were involved.

Having felt that they had to blame someone, on 9 November, Friday night past, six armed IRA men went to the home of Vincent Traynor and forced their way in, but Vincent was not there. For the past week Vincent Traynor has been guarded by the police quick reaction force based at Crossmaglen and Newtownhamilton PSNI barracks. Responding to the visit, the QRF was at his house in a matter of minutes, but the IRA gang had gone. Vincent Traynor is now considered to be number one on the IRA hit list because he talked the leadership in South Armagh into the situation that saw the brutal and savage murder of Paul Quinn.

The blame for the murder and the subsequent situation has to lie with the IRA. The IRA veterans of South Armagh want to bring into line the young republicans of the area who are openly defying the leadership. Given those activities, "Slab" Murphy should have his bail in the Republic revoked, as he is now involved in the intimidation of witnesses. At his next court appearance, he should be held in custody while papers for his extradition to Northern Ireland are prepared.

Extreme republicans close to the IRA Army Council are trying to suggest that Paul Quinn's family is being manipulated to create anti-Sinn Fein propaganda. This is not so. I have been contacted by a number of people and groups from the area who would not normally consider me as a friend asking that the police remove and prosecute those involved, and get them off the streets.

To clarify the situation, if any charges as a result of this murder are brought before the Irish courts, I have not influenced a potential jury by my remarks. It must be remembered that any court without a jury would be a special court. Both Governments need to deal with this type of criminal activity. To brush it under the carpet, as seems to many to be taking place, is just a short-term solution. The island of Ireland will never be at peace until illegal activities are tackled in full and equality is in total operation.

Photo of Lord Smith of Clifton Lord Smith of Clifton Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords, Ministry of Justice 7:11 pm, 12th November 2007

My Lords, it would not be appropriate for me to comment on the speech of the noble Lord, Lord Laird, but it is relevant to point out that the UDA's decision of yesterday to disband its paramilitary wing, but not to decommission its arms, is a salutary warning to us all that scrutiny must be maintained.

Monitoring should continue more widely to establish that progress is being made in Northern Ireland. As the noble Lord, Lord Trimble, observed, Westminster is the sovereign Parliament and should have a care for all the devolved Administrations. The Deloitte report of last April estimated the extra cost of a divided society in Northern Ireland as being some £1.5 billion, covering policing, education, housing, health and other provisions. This cannot be allowed to continue, yet neither the United Kingdom Government nor the Northern Ireland Executive have addressed the findings of Deloitte's report to date. Still less have any implications been drawn for future public policy. The silence from both has been deafening, and that is ominous. Will the United Kingdom Government insist that the colossal cost of maintaining division in services is reduced and ultimately eliminated when they negotiate future Barnett formula settlements for Northern Ireland?

While policing takes the major share of this overspend, education is a major element, too. Deloitte estimates that savings of between £15.9 million and £70.6 million could be made in education. The earlier Bain report of the independent strategic review of education called for a reduction in the number of schools, and greater collaboration and co-operation between them and with the FE sector. There are falling rolls and plenty of empty desks in Northern Ireland schools. Savings on teachers, Deloitte reckoned, could be within a wide range of between £108.6 million and nearly half a million pounds.

The two main providers of teacher training are St Mary's and Stranmillis University Colleges. They both produce teachers of a high standard, but there is a major flaw: those teachers, taught separately as they are, cocooned in the two distinct cultures, perpetuate the sectarian division. That is the most serious impediment to the construction of a fully democratic and mature civil society in Northern Ireland. Only the University of Ulster, of which I was once vice-chancellor, provides teacher training in a non-sectarian context. The Bain report's proposals, if adopted, would help to dissipate the sectarian nature that so bedevils the Northern Ireland educational system.

Integrated schools should be the beacon to be followed. They are the most notable attempt to date to rid Northern Ireland's schooling of its sectarianism. Integrated schools received shamefully insufficient support from the United Kingdom Government during the years of direct rule. The opportunity should have been boldly taken then to promote them as one of the better ways forward. Integrated schools are unlikely to get any better support from the Northern Ireland Executive in the near or immediate future. Their Ministers are drawn exclusively from both sides of the sectarian divide and, as such, have little or no incentive to foster integrated education.

As we saw today at Question Time, the recent activities of the United Kingdom Government have not been helpful. The decision to put a security wall in the playground of the Hazelwood Integrated Primary School in north Belfast beggars belief. What signal does that give? The present Government are intent on creating many more faith schools in Great Britain. That will entrench sectarianism in society in Great Britain very effectively. Anyone who has lived in Northern Ireland for any time, as have I, knows that. Precedents from Northern Ireland have often been exported to Britain. Sometimes, they have been for the good, other times, not. Are we to expect that the new wave of faith schools, together with those that already exist, as sectarian attitudes are nurtured, will get the Hazelwood treatment of security walls and barriers? It is more than likely.

I am a committed Anglican—I am sorry that the Bishops' Bench is empty as I might have got a blessing. However, I shall not get a blessing for what I am going to say. I have been a diocesan-appointed governor of a Church of England secondary school; my wife has chaired the governors of a Church of England primary school. However, the time has come to take religious affiliation out of the establishment of schools. In the present age, which has seen a rapid rise in fundamentalism in almost all faiths, the Government should pursue a policy of secularisation as we see in France and the United States of America. This is as true for Northern Ireland as it is for Great Britain.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative 7:17 pm, 12th November 2007

My Lords, it is a pleasure, as always, to follow the noble and scholarly Lord, Lord Smith of Clifton, who started his teaching career in the politics department at Hull University. I propose to focus on constitutional change and the Government's proposals to strengthen Parliament. To what extent do the proposals for constitutional change advanced by the Prime Minister, both conceptually and in detail, differ from those advanced by his predecessor? At one level, and the most fundamental, there is no change. There is no clear articulation of the type of constitution that the Government are seeking to establish for the United Kingdom. Ministers are unable to identify the goal, the end point, of constitutional change. The Prime Minister talks of a "new constitutional settlement", without clearly identifying what the settlement is. What, precisely, is the type of constitution that the Government wish to establish for the United Kingdom? We still do not know.

However, at another level, there clearly has been a change. We may not know the intended destination, but there has been a change of direction. Under the premiership of Tony Blair, there were several major changes to our constitutional arrangements. They were essentially external to Parliament and, in many respects, constrained Parliament. Under his successor, Parliament has become the focus of change. In the Green Paper and in the Queen's Speech is an emphasis on giving Parliament and the people more power and on enabling Parliament more effectively to call the Government to account.

This is a change in direction that I very much welcome. It is vital to the health of our political system that Parliament's role is recognised and bolstered. To what extent do the Government's proposals strengthen Parliament? For the answer, we have to look as much at what has been announced independently of the Queen's Speech as at what is in the gracious Speech. There have been speeches and consultation documents that complement what is in the Speech. How are we to evaluate these various proposals? There are essentially two criteria that we may employ for the purpose of assessment. The first is the extent to which the changes are formally constitutionally significant. The second is the extent to which they impact on Parliament in its day-to-day activity in calling the Government to account. Arguably, the changes are more important in fulfilling the first of the two criteria than the second.

In terms of constitutional significance, transferring to Parliament certain prerogative powers, such as the power to commit troops abroad and to vote prior to the ratification of treaties, is clearly of great importance. Some commentators have argued that this constitutes giving power back to Parliament; in fact, it constitutes giving powers to Parliament that it has never had. These proposals are generally out for consultation and in part will be addressed in the draft Bill expected in January. There is still much to be resolved, as the consultation paper on war powers and treaties recognises, if the transfer of powers is to be effective. None the less, on the face of it, on the criterion of constitutional significance, the Government's proposals are clearly important.

What about the second of the two criteria? To what extent will the Government's proposals actually affect the day-to-day working of Parliament? Here the picture is somewhat hazy. The war-making power is clearly of constitutional significance, but it is not a power that one expects Parliament to exercise on a frequent basis and, in any event, is dependent on adequate information. The power to vote before treaty ratification is important, but relatively few treaties are contentious. Those relating to the European Union are already debated, as we shall see this Session. When there are proposals that affect what Parliament does on a day-to-day basis, many are essentially for discussion or referred to committees in the other place.

The proposals are welcome, but they are in many respects tentative and partial. It is not clear that all of them, such as the creation of regional select committees, will be carried through. In any event, they go only part of the way and do not really get to the heart of what is necessary, especially in terms of the basic task of legislative scrutiny. Here, the two essential changes that are needed are in respect of pre-legislative and post-legislative scrutiny. The programme for this Session includes seven Bills to be published in draft, and five of the Bills listed in the draft legislative programme were published in draft. I very much welcome this, but it still falls short of the position taken by the Government only a few years ago, to work towards most Bills being published in draft. There are still Ministers who cannot see the point of publishing Bills in draft.

Can the Minister answer two questions? First, what was the process employed to determine which Bills would be published in draft? Was it a systematic process or an ad hoc one? Secondly, which of the draft Bills are expected to be subject to pre-legislative scrutiny? The draft legislative programme envisages that this will largely be a matter for Parliament but the reality is that much depends on the Government. Will sufficient time be made available for pre-legislative scrutiny?

I wish to see pre-legislative scrutiny taken further, but I welcome the number of Bills published in draft and the comments embodied in the Green Paper. However, the Green Paper, the draft legislative programme and the Queen's Speech are silent on the one thing that would enhance dramatically Parliament's impact on the quality of legislation in this country, and that is post-legislative scrutiny. Post-legislative scrutiny is hardly ever undertaken, yet is fundamentally necessary. As the Minister knows only too well, the Law Commission published a report on post-legislative scrutiny in October of last year. It was an important report; the Government seek to respond to Law Commission reports within six months; but it is now over a year since the report was published and still there is no government response. Yet it is precisely this sort of change that will enhance Parliament's day-to-day capacity to call government to account. The Government's response will demonstrate whether they are really committed to strengthening Parliament. My final question to the Minister is simple: when will the Government publish their response to the Law Commission report? If Government are not prepared to act, it is up to Parliament to take the initiative.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench 7:25 pm, 12th November 2007

My Lords, my comments will be on penal policy. It is encouraging that the Government continue to pursue their aspirational if somewhat elusive target of moving an increasing number of families out of poverty and, of even greater importance, increasing ways in which children from deprived and dysfunctional backgrounds can be helped to realise their full potential. All this is important not just because to be competitive in today's global world requires everybody to be trained and educated to their potential and, at a personal level, to feel and be valued and involved in their own community, important though that is; it is also because, to put it bluntly, the financial cost of each failure is a ludicrous misuse of public funds.

The figure bandied about over recent weeks is that it costs more to keep a prisoner in a police cell overnight than at the Ritz. Think of the financial cost to us all of a child taken into care who goes through that whole system, followed by a life of repeated offending and prison sentences. Somebody has put the figure on it of £50,000 a year per offender. I hope that somewhere in the Ministry of Justice there will be a figure, which the Minister may be able to give the House, of what the cost of such a wasted life would be.

Against that background, it is clear that the effects of prison overcrowding, and the juggling that the Government have had to undertake in letting prisoners out early, have reinforced a growing view that, for most offenders, prison is not working. That realisation must actually be a step in the right direction. I say that because rehabilitation within prison—a lot of it has been done in the past—has become increasingly difficult. For the majority of offenders, though not, of course, the dangerous and violent, a range of localised community sentences are, thankfully, beginning to be seen as the sensible alternative. I emphasise the word "localised". In this way, a combination of relevant education and training, restorative justice schemes and an effective range of medical treatment provided for addictions or mental health problems is what is needed.

The key to whether this is, in practice, the answer lies in what priority the Government give to the whole issue. Do the Government intend to provide adequate resources to support those essential partnerships between state, private sector and voluntary organisations? They will work only with that degree of backing. Throughout the country, there are already successful schemes of this kind, operating both inside and outside prison. It would be particularly helpful if there could be gathered together a Bible of successful best practices, which could well inspire similar innovation elsewhere—not copycat innovation but what suits individual areas. For example, we have recently heard of two proposals that I can remember, including training by the National Grid for all sorts of things—something that got a fair degree of panning in the national press, which totally took it the wrong way—and training in the laying of rail tracks. That sort of thing inspires individual offenders, because they know that they will get a job when they get out. That is crucial.

Above all, within prisons, and particularly for young offenders, we must target and break the high level of "churn" in reoffending. That has been highlighted in debates in your Lordships' House in recent months. I am very glad to see present noble Lords who took part in those debates. By providing that extra support with housing and jobs and, above all, with mentoring on their release from prison, there really is hope. Many of us remain convinced that quite apart from reclaiming individual lives and self-esteem, considerable sums of taxpayers' money would be saved by giving this approach a much higher priority. Effective action with current offenders is important, but of even greater importance is to find the most effective way of reducing the number of children who ultimately land up in prison, and that means much greater emphasis on preventive action. As the main support for children, the primary carer within the family, is the mother, how successfully does the criminal justice system meet the needs of women offenders? I am afraid that my answer to that—and I suspect that of many others—is that it does so pretty unsuccessfully.

In this context I have to confess to finding it quite astonishing—indeed, quite unacceptable—that there has been no debate in your Lordships' House on the Corston report on vulnerable women in the criminal justice service, and that was published no fewer than eight months ago, in March this year. It is not as if concern about this issue is new. The report of the Fawcett Commission on women in the criminal justice system, published in 2004, pointed to many of the essentially male-designed system's failings when applied to women. Well before that my noble friend Lord Ramsbotham, when Chief Inspector of Prisons, called for real change in the way in which female offenders were treated and, in particular, for one person within the Prison Service to be responsible for all women in custody wherever they were. Yet I am afraid that the situation for women in prisons has undoubtedly worsened over the past 10 years. Male prison overcrowding has meant that women are more likely to be placed in prisons even further from their homes. As most jailed women are mothers and as one-third of these have children under five, visiting is even more difficult and family break-up all the more likely.

Undoubtedly, some of the Government's 37 Criminal Justice Bills in the past 10 years—for example, that concerned with custody for a second offence—have contributed to the doubling of women prisoners. The number has risen from something like 2,600 when Labour took office to nearly 5,000 today and although the overall proportion of women to men in custody remains small, over the 10 years the female total is up by over 126 per cent compared to a male increase of something like 46 per cent. Women's length of sentences, too, are believed to be disproportionately high despite the fact that a third of the women—twice as large a percentage as the figure for men—had no previous convictions. I have to say that I was deeply concerned, when visiting Downview Women's Prison earlier this year, to be asked repeatedly by the women themselves why many of their sentences were so much longer than men's for similar offences. I confess that I continue to worry about this. A question I should very much like to ask the Minister is whether any comparative study has been done of the reasons for this, particularly perhaps because of the number of offences which involve drug smuggling. Have we any idea of the extent to which these women are so convicted because they are the unlucky pawns or enslaved mules paying the price of offences for which their gang masters or pimps should be paying?

But by far the most worrying aspect of gender difference is the high percentage of women in custody—something like 80 per cent—with mental health problems. I believe that at one point 70 per cent in Holloway were drug addicts, and 36 per cent of all women sentenced in 2004 had committed drug offences.

Another concern which I hope might be helped if mothers were in Corston-style units nearer their homes is the tendency to self-harm. The Prison Reform Trust says that some 40 per cent of women prisoners have attempted suicide at some time. That is a truly horrendous figure and perhaps unsurprising—as Fawcett tells us—as most of these women had experienced violence and/or childhood abuse.

Very much following that point, like many other noble Lords I have been concerned by the long delay before bereaved relatives of those who die in custody have any real background as to why their particular tragedy took place. So I join other noble Lords who have expressed their concern that the much heralded coroners Bill does not feature in the gracious Speech, for the second time. For by such delay the Government are acting directly against those whose cause they claim to champion; namely, victims, and in this case their own victims—the relatives of those who have died in custody.

For those families who have lost a loved one through a death in custody these delays can be very distressing. Families can wait three years or more for an inquest to be held. There are also problems with funding and legal representation for families which need to be put right and the system for following up recommendations made by coroners in their Rule 43 reports—so as to prevent further deaths—is seriously defective. Can the Minister tell us what is happening to the coroners Bill, and when the Government intend to bring in the necessary reforms to the system?

I close with a final response to the Government's treatment of the Corston report that I have tried to summarise. It seems to me extraordinary that a Government who have been so committed to pursuing equal opportunities for women in so many other respects, and who have been so effective in that regard, should not by now have embraced at least some of the Corston proposals. We were, of course, all delighted that the noble Baroness, Lady Corston, was chosen to open the debate on the Queen's Speech, but would it not have been far more gratifying to all of us and not just to her if the Government had responded much more positively to her report itself? Can the Minister respond now not just with an explanation of why the report is not mentioned in the gracious Speech but with a clear commitment to the date on which a Bill implementing its recommendations will be introduced?

Photo of Baroness Goudie Baroness Goudie Labour 7:37 pm, 12th November 2007

My Lords, the theme of the gracious Speech is to protect the public while at the same time preserving essential rights and liberties. We are all in favour of both these aims. Happily, to a large extent they are compatible but an unprotected public would not enjoy these essential rights and liberties and infringements of those liberties may jeopardise public protection. None the less, there is at times a potential for tension between these two necessary objectives and at such times a judgment has to be made on how the balance is to be struck.

We can all agree on two general propositions. First, no one should be in prison for a lengthy period unless they have been convicted, and convicted by a jury who are satisfied on the evidence of their guilt. Secondly, there are circumstances when some must be kept in prison before they are convicted and before the evidence has gone before a jury. There are many cases where bail pending trial is appropriate. There are some cases where it is not. A ground for refusal of bail is the concern that offences would be committed if the defendant was at liberty. None of this is novel or controversial. It may, however, result in a remand in custody for many months, triggered by nothing more and nothing less than a charge culminating potentially in an acquittal. This is regrettable but, on occasions, unavoidable.

If there has not yet been and indeed never may be a charge, plainly any question of a period in custody has to be even more vigorously circumscribed. It cannot, however, always be ruled out. I believe that we all agree that it is sometimes necessary, but it is also essential both that the period should be short and that there should be the strongest safeguards and appropriate judicial scrutiny.

The issues are the nature and the extent of the safeguards, the judicial involvement and especially the maximum period that is to be permitted. I trust that we will be able to achieve a consensus on these matters, guided by the principles of ensuring security to all in the context, particularly, of the very real threat of terrorism that we face, while at the same time upholding the rights and liberties that the terrorists completely disregard.

In preserving rights and liberties, we must above all preserve the liberties and rights of the most vulnerable in society, which pre-eminently includes human beings who are trafficked. I trust that the other measures that the gracious Speech promises will at last introduce the legislation necessary to implement the Council of Europe's Convention on Trafficking in Human Beings.

I wish to declare an interest as vice-chairman of the All-Party Group on Identity Fraud. Identity fraud is a growing problem, as has been highlighted by the Prime Minister in his recent speech on liberty. In recent years, the Government have introduced several legislative measures which, I understand, have been welcomed by law enforcement authorities and will be effective in tackling identity fraud. Yet other areas must be addressed to tackle this growing problem. In particular, our recent report highlighted the need to build awareness among the public and businesses in the UK of the danger of identity fraud. Initiatives, including the annual identity fraud prevention week and the Get Safe Online campaign, which launched this morning, have been effective in raising awareness among those groups. The Home Office's involvement in the former campaign should be noted.

However, there remain too many incidences of consumers placing themselves at risk and businesses being careless with personal information for such work to stop. This year alone, the Information Commissioner has launched investigations into Barclays Bank, TK Maxx and Littlewoods for breaches of the Data Protection Act. The Information Commissioner's office has found 11 further banks to be in breach of the Act after investigating complaints about the disposal of customer information. The Information Commissioner stated:

"Over the last year we have seen too many careless and inexcusable breaches of people's personal information. The roll call of banks, retailers, government departments, public bodies and other organisations which have admitted serious security lapses is frankly horrifying".

I look forward to further proposals that will lead to greater understanding of this problem and help to combat the menace of identity fraud.

Photo of Lord Tyler Lord Tyler Liberal Democrat 7:43 pm, 12th November 2007

My Lords, like other Members of your Lordships' House, I take my text from the gracious Speech,

"to entrust more power to Parliament and the people ... Proposals will be brought forward to renew the constitutional settlement and strengthen the relationship between the Government, Parliament and the people".

How? Is there anything in the Government's legislative programme that can reverse the growing disengagement of the British people from their representative political institutions?

Last week, one Minister said:

"Give democracy a chance and allow free and fair elections to happen, allow a government to emerge which represents all the people".

He was talking, quite rightly, about Pakistan; but we have a democratic crisis in this country as well. It is now arithmetically likely that the day after the next general election one party will have gained the plurality of the popular vote while another will have secured the largest number of seats, or even an overall majority in the House of Commons. It could happen like this. According to Sir Robert Worcester, the founder of MORI and doyen of serious opinion research, some 800,000 voters in about 100 constituencies decide UK general elections and choose the Government, and all the other 44 million might as well stay at home.

Naturally, all three parties concentrate on those few floating voters in those few marginal constituencies. The result is that there are huge variations in turnout. The top 10 constituencies in 2005, many of them Conservative/Liberal Democrat marginals, saw some three-quarters of those entitled to vote doing so, because everyone realised that their vote would count. The bottom 10, most of them very safe Labour seats, scarcely scored half that figure, and the variations in electoral registration follow the same pattern.

I will provide a personal illustration. When I was first elected to the Commons in 1974, the shrewd Cornish electors knew that it would be very close; they gave me a majority of just nine, and the turnout was 83 per cent. In the last election I contested there they were equally farsighted, giving me a majority of nearly 10,000, and the turnout dropped to 63 per cent. A perceived foregone conclusion is a major turn-off to turnout. For the vast majority of our fellow citizens, under our present system elections seem to be, literally, a waste of their time.

Where the votes count, political parties campaign hard at vast expense, and voters respond by turning out. But the funding for these campaigns is opaque. In Gillingham and Rainham, Britain's most marginal seat under the new boundaries, the Conservative candidate recently boasted that, "the funding is there" for his election campaign. How odd, then, that not a single donation to the local Conservative Party has been declared since June 2005. Where is the money coming from?

One man has perfected the art of tactical targeting. The noble Lord, Lord Ashcroft, bankrolled Conservative candidates in selected seats in the years leading up to the 2005 general election. His huge investment paid off. Peter Bradley, former Labour MP for The Wrekin, has established that 24 of the 36 Conservative gains were paid for with the Ashcroft millions. This country has not seen such deliberate and successful vote-buying since the rotten boroughs were swept away in 1832. Expenditure during election campaigns has been rightly and rigorously controlled for generations, but this huge pre-campaign funding from outside target constituencies is totally unregulated.

Apologists for this state of affairs have, in recent days, claimed that it is simply intended to offset the new £10,000 a year "communications allowance" for incumbent MPs. What humbug! For a start, that allowance did not exist in the run-up to the last general election and, if that is now the public-spirited purpose of that exercise, why is it confined to a select few Conservative candidates? Surely, every parliamentary candidate in every constituency should expect a cheque. Surely, it should be the standard £10,000 each year. The noble Lord should put his money where his mouth is.

In 2007, it is already apparent that the swing away from Labour in the marginal seats is greater than in the country at large. The noble Lord, Lord Ashcroft, explained in a recent article in the Daily Telegraph how he intends to upgrade his vote purchase programme. Hence, when the Prime Minister summons up the courage to call an election, if that investment pays off, there easily could be an even more distorted result than we have become accustomed to. Imagine the public reaction and further disengagement if one party clearly wins the popular vote, and is clearly first past the post, but another forms a new Government with a clear majority of MPs. The system will have failed even on its own terms. With 500 seats left devoid of any real campaigning, the turnout may well drop below 60 per cent, since electors in those areas will recognise the futility of their choice. What a swindle! That would make Parliament truly illegitimate. Indeed, this House would look rather more legitimate than the other.

In his Hugo Young Memorial Lecture in December 2005, Gordon Brown said,

"by meaning what we say about building a Britain of liberty for all, responsibility by all, and fairness to all, we can actively work for a new constitutional settlement".

He spoke about liberty for all, responsibility by all and fairness to all, but what about democracy for all? What, indeed, about no taxation without fair representation? Surely, it is a basic human right in a parliamentary democracy to be treated as an equally valued citizen.

At the moment, as a perceptive article in the Independent pointed out a few days ago,

"if our politics is paid for by the richest one per cent, it will work in the interests of the richest one per cent".

And they may not even be British taxpayers. Hence the obsession with the inheritance tax of millionaires rather than the council tax of pensioners. The Prime Minister and his Government should not play infantile word games with the constitution, citizenship or even "Britishness" and ignore the elephantine electoral distortion dominating public disenchantment. Today's obsession with a British motto is, by contrast, a constitutional mouse.

All the fine words of the gracious Speech will be meaningless unless Ministers face up to the twin and closely related flaws of the first-past-the-post electoral system and the arms race of party donations and spending. Any representative system that gave real choice to the whole British electorate would require the parties to campaign for every vote everywhere. That is how the French achieved the remarkable 86 per cent turnout in their presidential election. A change would also kill stone dead any attempt to buy an election by pouring money into selected marginals.

We Liberal Democrats believe that the growing consensus that developed the Hayden Phillips cross-party discussions on party funding should have been built upon, not demolished. In the wake of the "loans for Lords" scandal, all Members of your Lordships' House have a direct interest in cleaning up this mess. The reliance on a small number of very rich individuals has done huge damage to our body politic as a whole, but especially to the reputation of this House. Obviously, each party will have to compromise to achieve agreement. I note, for example, that the noble Lord, Lord Levy, has endorsed the proposed £50,000 annual limit on individual donations. The Labour Party may have to accept that, if the trade unions are to be treated as collecting agents, their members must be given a double choice—which party they wish to assist as well as whether to contribute to a political levy at all.

It is the Conservative Party that has thrown all the toys out of the pram. Why the sudden U-turn? As recently as 15 March, Theresa May, welcoming the thrust of the Phillips recommendations on behalf of the Conservatives, told the Commons,

"we are happy to discuss spending caps on all year round non-election campaigning".—[Hansard, Commons, 15/3/07; col. 469.]

How has the Ashcroft tendency turned the official Tory policy upside down? If legislation on this issue is to be put before Parliament, we must hope, for the sake of the integrity of our political system, that all the parties will be prepared to take the Phillips proposals as the starting point for meaningful reforms.

We believe that the planned cap of £150 million over a full parliamentary term, for national and constituency campaigning, was realistic, together with strict caps on individual donations. All parties in this House should surely agree that such a reform is essential to ensure that individual wealthy donors are unable either to exert disproportionate influence over parties' policies or to buy elections.

We are honour bound to believe that the gracious Speech means what it says. Will the proposed constitutional renewal Bill, taken with the proposals for

"the regulation of party finance and expenditure", adopt a radical approach to the patent inadequacies of our current democracy? In her speech last week, the Lord President and Leader of your Lordships' House identified,

"entrusting more power to Parliament and the people",—(Official Report, 6/11/07; col. 18.]

as a key objective for this legislative year. If that is not to prove to be meaningless waffle, the Government must address the fact that our whole electoral system is no longer fit for purpose in the 21st century and the financial support which underpins it risks corrupting it still further.

Photo of The Earl of Onslow The Earl of Onslow Conservative 7:54 pm, 12th November 2007

My Lords, we all know why the Liberal Party wants proportional representation. It is to get influence way in excess of the number of votes it receives. On unfair votes in the last election, it is worth recording that the Tory Party received more votes than the Labour Party in England but got considerably fewer seats. There is certainly an element of disproportionality and errors by the Electoral Commission.

I apologise sincerely for not being here for a large percentage of the debate, but I am a member of the Joint Committee on Human Rights. We met this afternoon and one cannot be in two places at once. I thought it important to attend that meeting.

The last time that an officer of such a senior rank adorned the Government Front Bench was Field Marshal Lord Alexander of Tunis. I was privileged enough to be brought here by my father and sat on the steps of the Throne when I was aged 14. The Liberal tsar was Lord Samuel. Lord Stansgate was making the most frightful noise about the fact that we were cheating over the number of our troops in the canal zone. Churchill sat next door to me on the steps of the Throne and asked me what the time was. My watch had stopped, so all that I could say was, "I am very sorry, sir, my watch has stopped". In my life, those were the only words that I addressed to the great man.

I do not think that any of your Lordships will know of Ernest Adamson or Theodore Zissu. They are the first and last names on the West Clandon village war memorial at which I was present when a wreath was laid yesterday. What did they fight for? They fought for us to be free, for our institutions of a parliamentary democracy, for liberty of the subject and for the freedom of England, Scotland, Wales and Ireland. What they did not fight for were identity cards, a civil contingency Bill or the arrest of a woman for reading in front of the Cenotaph the names of people who fell. They did not die for the erosion of the right of trial by jury, for reducing the ban on double jeopardy, for imprisonment without trial for something that was not a criminal offence or for collecting DNA on children and a large percentage of the immigrant population. They did not die for detention without trial for long periods.

That issue is the most important we face. We cannot hold our heads up as a democracy, as a country of free people, and claim to set an example to others in this world if we lock people up on the whim of the police that it might possibly be a good idea—even if they cannot think of a real reason to do so. There is no need for this. Not only do I say that, but it is the view of Peter Clarke, the deputy assistant commissioner in charge of terrorism. When we saw him the other day, he said, in direct contraction of last week's speech by the head of MI5, that the terrorist threat was no worse than it had been when the 28-day detention rule was introduced. This confirmed what Mr McNulty, the Minister, said in July.

So far as I can gather, there is absolutely no evidence of the need to extend the 28-day detention period, and it is hard to exaggerate what a dismal example it would show to others in the world. It is the behaviour of General Musharraf and of most of the grubbier regimes on this Earth; it is the sort of behaviour that is happening in Guantanamo Bay. Your Lordships have a good reputation for defending civil liberties in this Parliament—far better than another place. If the measure gets through the Commons, I hope that we will be strong enough to vote solidly against it, because it is wrong and unnecessary and because no more than 28 days has ever been needed.

It is essential—this must be said time and again—that we in this House act on our honour. That is why we are all here. We are not here by popular election; we are here by accident. I concede that I am a constitutional anachronism—I even enjoy being a constitutional anachronism—but I am here on my honour, as is every other single Member of your Lordships' House. I suggest that that honour means that we do not allow an extension to 56 days' detention, or whatever Ms Smith, who cannot make up her mind, finally decides is necessary. If anything, we should be attempting to reduce it.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench 8:02 pm, 12th November 2007

My Lords, the gracious Speech sets out a pretty strenuous programme of legislation to be brought before Parliament, and there is in the air a hope that this may point to some new constitutional settlement. I am not sure that I entirely share that hope, and that is not just because of the sort of constitutional settlement indicated. In the event, the programme of legislation that we face may not be quite as strenuous as some others that we have faced in recent years, but, reading the Speech and other materials, no one would deny that there will be a great deal to be done. As we embark on this work, and in particular on the Bills of constitutional importance, it seems to me that we should ask ourselves how good the legislation of all sorts that we enact is likely to prove. Nowhere is this more important than in legislation that has, or may have, constitutional importance.

I do not think I am alone in worrying about the quality of some of the legislation enacted by Parliament. I have heard that anxiety surface in many speeches by noble Lords this afternoon. I think that we worry particularly, and rightly, in the areas of anti-terrorism, citizenship and social cohesion, but I do not wish to point the finger specifically at government, at certain departments of government or at parliamentary draftsmen, and I do not wish to question the energy and care which is brought to bear in testing and amending specific legislative proposals, especially in your Lordships' House. My concerns are more general but I think that they are also rather more worrying.

Perhaps I may begin with a very brief reminder of John Locke's profound comment on the purpose of government in his Second Treatise of Government, published first in 1690. This work is as close as any to a founding document of our modern constitutional tradition. It is often supposed that we have assimilated the lessons that Locke provided for us but that we have gone far beyond him with our more extensive respect for human rights and our greater concern for democracy. However, I think that there are many signs that, in a rush to improvement, we may be losing sight of fundamental matters.

Without government, Locke argued, we find ourselves in a state of nature and,

"there are many things wanting".

The most serious lack, he argues, is that:

"There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies".

But do we now provide our fellow citizens with settled, known laws? Settled they may be—at least until the next bout of legislative fervour and at least in so far as legislation that is open to further interpretation in the courts can be settled—but are they known? I have an increasingly uneasy feeling that they are not and, indeed, that all too often they cannot be known by all but a handful. I remember that when the noble Lord, Lord Phillips of Sudbury, decided that he had done all that he could in your Lordships' House—he is much missed, far beyond the Liberal Democrat Benches—he cited among his reasons for desisting his view that Parliament was no longer serving citizens well. He pointed out the 15,000 pages of new legislation of the previous year and the thousands of new criminal offences of the past decade. Legislation on this scale and at this speed does not and cannot produce settled, known laws.

Those of us who have worked in the institutions beyond Whitehall—whether in companies or charities, in local government or the professions, in universities or schools, or in the great range of non-departmental public bodies—know that this churning tide of new legislation far exceeds what is knowable and that it has raised the costs and burdens of institutional life colossally. We have disempowered those who carry institutional tasks by enacting prolix legislation that they cannot know—perhaps cannot even understand if they consult it—and thereby we require them to consult lawyers with increasing frequency and at increasing expense, and we fuel defensive practice by all these institutions. We may not have secret laws—that was of course John Locke's worry—but increasingly we have unknowable and unknown laws.

I think we can all agree that some legalisation has to be complex. However, I believe there is a range of questions which we should ask ourselves, and which I hope Ministers may also ask themselves, as we embark on a new Session of legislation. Among those questions I would include the following. Are we legislating too much and too fast? What tests are we now using to establish whether new legislation is needed at all? Again and again this afternoon, noble Lords have pointed to existing legislation which could have served the purpose but which is assumed to be redundant. If new legislation is needed, can we be sure that it will be better than existing legislation? I look with some nervousness towards a Human Fertilisation and Embryology Act reform because the 1990 Act was well drafted and good legislation. Will what comes before us be as good? Why do we not more often enact consolidated legislation? Why do we legislate without evidence of the costs of new legislation for those who have to comply with it? They often dwarf the costs to the public purse, about which we are told.

In response to these questions, the Government may point to their extensive practices of consultation. I am not consoled. Current practices of consultation may not be much evidence of genuine responsiveness to public concerns. All too often, the questions asked appear to have been drafted by persons rather unfamiliar with the activities that the legislation will affect, and they often include closed questions that preclude reflective or critical responses. Consultation done to unrealistic timetables prevents responses being reflected in the drafting of legislation, and I fear that that is all too frequent. So, in the end, consultation may nurture cynicism, as those who are asked to consult realise that it is time-consuming for them and that it is only window-dressing which is not likely to lead to better legislation.

I hope that these are only some of the issues that we will consider as we embark on a range of constitutionally significant Bills. In the main, Government propose legislation but Parliament can dispose, as the noble Earl has just reminded us. I hope that we can do so with vigour and that noble Lords on all sides of the House will press to know more about the need for, and the purposes and costs of, hyper-complex legislation, and that we will support laws that are potentially not only settled but knowable, so that they have some prospect of becoming settled, known laws. In making laws, less can be more.

Photo of Lord Judd Lord Judd Labour 8:10 pm, 12th November 2007

My Lords, I am deeply sorry to have missed a large part of the middle of this debate, but like the noble Earl, Lord Onslow, I am a member of the Joint Committee on Human Rights, which unfortunately met at the same time and it was an important meeting.

I for one welcome the changed emphasis in the Queen's Speech this year. Last year it started with a preoccupation about the dangers, the threat and the security measures that were necessary. This year it spells out the social purpose of government in education, homes and health, and then goes on properly to underline why security is vital if we are to have the context in which all this can happen.

The Speech mentions citizenship. I am always a bit uneasy about defining citizenship. I have always liked to feel that I have been part, and grown up as part, of a free-thinking liberal democracy in which we do not go in for that sort of thing. It seems to me that if we are to talk about citizenship in the age of the global market and total international interdependence, the real challenge is to prepare our young for global citizenship. The Speech also goes on to deal with preserving essential rights.

My formative years were immediately after the Second World War. The great point then was that the statesmen who had been through the traumatic experience of that war understood that human rights were essential to stability and security. They mattered for individuals but they were essential to stability and security. It could be argued that if there is not a rights deficit, extremism will be marginalised. If there is a rights deficit, extremism will always get the way.

The great point about the Universal Declaration of Human Rights and the European convention was that they were talking about rights as the rights of membership of the species. I am not fundamentally opposed to the notion of a Bill of Rights, but as we move on to that consideration we should be very careful. What are we going to do? Will we introduce the concept that there are rights that can be enjoyed by Britons and rights for everybody else? Will that strengthen communities, as the Government wish, or will it introduce new tensions throughout our society?

We must never underestimate the size or scope of the terrorist threat. It is appalling. It places an immense burden on the police and security services. I am glad, therefore, that in considering this issue strategically, the Government have seen the importance of emphasising the battle for hearts and minds. We can probably never eliminate the dangers of terrorism but we can contain and limit them. That means winning people to a positive identification with the cause. How can we do that?

First, we have to listen to the authentic voices of the ethnic communities, especially the young. It is important to speak not only with those representative bodies with whom it is easier to speak, but it is important to hear the voice of the radicals. In a recent seminar at Scotland Yard, a very senior officer working with the Islamic community emphasised how important his relationships with the more radical organisations were because they carried weight with the young. They were against extremism and terrorism but they were radical and had a resonance with young people. We must include the young.

We must also recognise the inescapability of the inter-relationship between what we are doing on this front and foreign policy. Our ethnic communities will be looking very closely at our position on Pakistan. They have done and continue to look closely at our position in the Middle East. I do not mind saying that I have a good deal of sympathy with those who find it extraordinary that on the one hand we go shouting round the world about democracy and on the other, when a particular Government for a particular community are elected, we say that we can have no dealing with them. I am thinking of Hamas. These issues are central to stability and winning hearts and minds in our community.

We must also—this is perhaps most important of all—have transparency and consistency in the administration of justice. I often reflect with the noble Earl, Lord Onslow—I must say across the House what a joy it is to serve on the Joint Committee on Human Rights with the noble Earl—that the whole story of the development of common law in our society has been a struggle for rights: habeas corpus, the presumption of innocence, no detention without charge, and knowing why one is being held. In the Joint Committee on Human Rights we have been extremely exercised by the 28 days. After searching inquiries and many witnesses, we could see no hard evidence why 28 days was absolutely indispensable. There is now talk of extending this because it might be of use in the future. Are we going to throw centuries of history away because something might possibly be of use in the future?

We are contemplating something extremely serious and grave. I worry that we are in danger of inadvertently giving the extremists the victory by dismantling the very principles and basis of the foundation of our society because of the risks that such extremists create. Of course we have to be tough. We must be tough but we have to be tough in the context of the principles that we hold dearest in our society.

Intercept evidence is of course related to this. I see the noble and learned Lord, Lord Lloyd of Berwick, in his place; the House has benefited tremendously from his considerations, and we are of course waiting for the report. Everybody knows that people are detained on the basis of intercept evidence. There is nothing more aggravating than to know that something is the case but not to have any access to its realities in court proceedings. We find ourselves increasingly isolated in the world on that front. We must be careful not to get into a mindset of why it is not possible. For example, there is a real issue of how in an adversarial system of justice one would prevent rules about what must absolutely—essentially—be kept secure from being eroded. I see that argument, but we should all address our minds to how we make it more possible, not to dismissing it as a possibility.

I conclude by saying that I have become convinced that terrorism and extremism thrive on ambivalence. If there is a feeling of perceived hypocrisy, contradictions, double standards and convenient adaptation of the law for particular circumstances without it being clearly justified, grievance develops. Recruiting for terrorism takes place in the context of a sense of grievance. How we administer our immigration policy is central: if by doing it we are humiliating and alienating people, we are sending them away as potential recruits for extremists. That is not sensible.

The noble Earl, Lord Onslow, referred to the fallen. I was in my village church yesterday at a moving remembrance service. There was a great deal of talk around that service and in the sermon, as there was right across the country, about having fought for freedom. We felt that yesterday. Is that something we just keep for 11 November? Or do we mean what we say on 11 November? If we mean it, we must not easily slip into the "convenient in the administration of justice" argument as distinct from what is proper, right and justifiable. We must examine with the utmost care anything proposed. I find myself totally unpersuaded at this juncture that there is any need for any extension of 28 days.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice 8:21 pm, 12th November 2007

My Lords, this debate and the gracious Speech have powerfully underlined the perception that if Parliament is to be restored with a sense of trust in its centrality to our democracy then we must put constitutional reform at the heart of our work. This debate has ranged widely but identified a number of areas of broad agreement. I agree with the noble Lord, Lord Norton of Louth, when he notes the change in the manner and objectives of constitutional reform under our new Prime Minister, who has openly espoused the notion of seeking consensus to strengthen Parliament. I likewise agree with the noble Lord, Lord Morgan, that the notion is timely and central, although I do not entirely accept the inevitability of incrementalism to which he attached himself. One of the difficulties about serial constitutional reform is that it does not embrace the impact of what it is doing on the different institutions. We must broadly consider how by moving on devolution in Scotland, for example—a point made by the noble Lord, Lord Jones—we might impact indirectly on Wales. Would it not be better to seek to enshrine in our plans for devolution the principles informing the lead case?

This gracious Speech particularly highlights in its initial legislative proposals two areas for the transfer of prerogative powers to Parliament. In passing, it might be said that the basic assumption—basic at least if you have a mind which is aware of constitutional comparisons—is a little odd in that we are talking about transferring powers to Parliament and the people. There is at least an arguable case that power should be exercised only if it is explicitly contained in statutory provision; that is the underlying case for a written constitution. I hope that that debate will sharpen and accelerate.

Perhaps the most powerful theme in today's debate, on which there has been broad consensus, is that we must not undermine the basic liberties of our country, which recommend it to others as the haven of enlightenment and freedom, by what we do under the threat of terrorism. The extension of pre-trial detention, which has been referred to by more speakers than any other subject today, is clearly not something that has commended itself to this House as necessary. The noble Baroness, Lady Neville-Jones, in the powerful speech with which she began this debate from the Opposition Front Bench, said that such clear evidence of necessity would be required. It is certainly reasonable to doubt that it exists, since it has not been deployed by the Home Secretary or anyone else in the Government in support of a particular period of detention beyond 28 days. The noble and learned Lord, Lord Lloyd of Berwick, my noble friend Lady Falkner of Margravine and, movingly, my noble friend Lady Tonge spoke about the obnoxiousness of executive detention, and that message must be taken from this debate when the Government are considering this issue.

I fear that to some extent such proposals reflect a rather unfortunate propensity which we have in Parliament to amend our criminal law not in a systematic fashion but by steps. Following each headline, each new Home Secretary comes in with a new Criminal Justice Bill to put his or her stamp on the statute book. The result is that we ratchet up the severity of the law and the penalties of the law, and it is no accident that with that history we are filling our jails in a manner that is quite incompatible with our aspirations to be a free society and which is quite out of line with every other European country. We need to look again at the possibility of the codification of criminal law, a recommendation made many years ago by the Law Commission and something that requires serious and continuing attention.

We have also had a fascinating discussion about citizenship, which was sparked by Gordon Brown. Perhaps one of the most penetrating observations was that made by the noble Baroness, Lady Warsi, who spoke of the importance in this context of recognising the right to equal treatment and preferring it to the right to enshrine difference. She was sustained in her arguments by my noble friend Lord Smith of Clifton, who pointed to some of the potential dangers in extending faith schools across our country at this time. The noble Lord, Lord Patel of Bradford, similarly spoke of celebrating the diversity in this country, which he saw as a strength. The right reverend Prelate the Bishop of Salisbury spoke of the dignity of common citizenship. That is a theme that will sustain the direction that has been outlined by the Government, but we shall have to come back to the practical applications of that theme.

Some will regret, as I do, that there was no reference in the gracious Speech to the decentralisation of our constitutional arrangements and the requirement for equity in the distribution of taxpayers' money across the regions. Several speakers, including the noble Lords, Lord Forsyth and Lord Trimble, spoke of the importance and necessity of amending the Barnett formula. That must be taken seriously if there is not to be a sense of injustice and inbuilt inequalities in our constitution today. Some mention has been made of overcoming the problems of being left out or being under-favoured in the proposed economic regional committees of the House of Commons. I will return to that.

Attention was also drawn to the need to strengthen the rule of law. My noble friend Lord Goodhart spoke of the squeezing of legal aid, especially civil legal aid, removing access to the courts. That also requires urgent attention but was not addressed in the gracious Speech.

I return to the issue of the prerogative powers—which, in a sense, is the central theme of the gracious Speech. We must welcome the concept of scrutiny of treaties by Parliament. It is a total anomaly that the Executive can commit this country without such oversight. That will greatly strengthen the perception that we are living in a parliamentary democracy. I have some sympathy with the view expressed by the noble Lord, Lord Borrie, about the appointment of judges. I am not entirely sure that that issue of the prerogative power needs to be approached at this time, in the light of the 2005 Act. His thoughts on that were compelling.

It is remarkable, however, that the tone of voice used by our Prime Minister in speaking of constitutional reform in the Green Paper, The Governance of Britain, differs so dramatically from that used when he spoke of constitutional reform in the European Union—which also directly affects us in this country. There, he did not seek to justify the changes contained in the European reform treaty in terms of their necessity for effectiveness, accountability and democratic control, but rather in terms of how Britain had tried to opt out of it all. I hope that that will change in the course of our discussion on the European Union's constitutional changes during the next few months.

There are matters which were singularly missing from the Speech, such as the whole issue of electoral reform, which, when the Statement on the governance of Britain was made, was referred to in terms of assessing the systems that have been implemented in certain parts of the country and for certain elections. That process is important and I hope that steps will be taken before this Parliament is out to remove the nonsense that my noble friend Lord Tyler addressed in his remarks. I hope that the Government will also bring forward proposals to deal with potential abuses of the law applied to the funding of political parties at this time. The report of Sir Hayden Phillips was valuable and offers a basis on which it should be possible to build.

Perhaps the most surprising omission from the Queen's Speech, in view of the amount of preliminary work and the Bills that have been drafted and published already by the Government, is the reform of the Civil Service, placing it on a statutory footing. I am not clear that the Government's legislative programme is so full that it would be impossible to advance that at this stage, but it would be helpful if the Minister, in his summation, could indicate the Government's current thinking on that issue. It is important that the independence of the Civil Service is secure. Moreover, if one is strengthening Parliament—the theme of this speech—it is important that civil servants are seen to relate directly to Parliament and to have an obligation to report to it, and not to be solely accountable to their Ministers.

In conclusion, there has been a conspicuous silence in this debate about the reform of this part of Parliament. No doubt we will return to that subject on another occasion. I will say nothing about the structure of this House in this debate. I will, however, say that it would be an error of judgment to seek to pile all these responsibilities on to a unicameral legislature and to make the House of Commons responsible for the oversight of public appointments and the scrutiny of treaties. To make the House of Commons the repository of the prerogative powers is frankly to diminish the prospect of their effectiveness and to avoid accepting, and indeed embracing, what the second Chamber is perfectly capable of doing and will be strengthened in doing if it is seen not only to embrace the expertise and knowledge that is currently here but to be based on a democratic foundation. I hope that we will hear considerably more about those prospects before this Parliament is finished.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 8:36 pm, 12th November 2007

My Lords, I think all your Lordships will agree that this has been a most stimulating debate. It has given rise to a wide number of questions, all of which have been entirely relevant to the theme.

I wish, first, to ask certain questions about the core part of the speech by the noble Lord, Lord West. The noble Lord will not be entitled to answer it from the Floor of the House. That task will fall to the noble Lord, Lord Hunt, who I realise might not have at his fingertips the latest information that the noble Lord, Lord West, will have. I will, to that extent, be tolerant of what he has to say.

First, why does no other democratic country need such a long wait between the point at which someone is arrested and the point at which they are charged? Two explanations spring to mind. The first is that, unlike all other countries, we do not allow intercept evidence in terrorist trial proceedings. The second was suggested to me by the noble Baroness, Lady Kennedy of The Shaws, when she drew our attention to a frightening statistic about the amount of resources that are invested in criminal investigations of terrorism. Could those two matters explain why the United States needs much less time between arrest and charge than we do?

Secondly, on the assumption that one of the two is desirable, which I do not accept, why do the Government need both to lengthen the time between arrest and charge and at the same time to allow post-charge interviews? I can see why one should be requested, but I cannot understand why both should be.

There is another dog that did not bark: the so-called threshold test. As your Lordships know, a prosecutor must usually be satisfied that the evidence before him discloses a reasonable prospect of conviction. Where insufficient evidence is available to meet this requirement, but the authorities are convinced of the need to keep an individual in custody, they may apply the lower threshold test. All that is needed is reasonable suspicion that a suspect has committed a crime and a reasonable prospect that further evidence will become available. Why have we heard nothing whatever from the Government Benches about this test?

Finally, we have heard nothing about control orders. During the great debate on control orders in the early months of 2005 the Government promised, as those debates concluded, that they would allow your Lordships' House to review the regime in 2006. When the relevant date came in March 2006, the Government said, "We want to wait for certain further matters to be determined before we go ahead with our undertaking in 2005", one of which was a court case. In the spring of 2007, again the Government said, "We will not bring this matter forward until the court has spoken". Now that the courts have spoken, will the Government undertake today to allow your Lordships' House to consider the whole question of control orders again in the course of the proposed terrorism Bill? Control orders are no more or less than executive preventive detention, a matter which was drawn out most strongly by the noble and learned Lord, Lord Lloyd of Berwick, in the initial debates and the subsequent placing before your Lordships' House of the relevant statutory instruments.

One of the most damaging things about the control order procedure is that it involves the judges, pretending that they are exercising a judicial role. The more that the judges are brought in like this, the more their independence will be undermined. When their independence is undermined, we undermine the values on which our society has been constructed, painfully over many centuries. Those are all important matters for the Government to address.

The main task of the noble Lord, Lord Hunt, will be to deal not with matters of terrorism, but with matters concerning the Criminal Justice and Immigration Bill. I think he will agree that this Bill is a range of disparate matters. When confronted with his hostess's pudding, Mr Churchill said, "This pudding has no theme". One might say exactly the same thing about the Criminal Justice and Immigration Bill, on which I have just four observations to make.

Like the noble Baroness, Lady Miller, we deplore the trend towards mixing the civil and criminal jurisdictions, resulting in quasi-criminal orders that may impose significant restrictions on an individual's liberty. We also intensely dislike permitting non-legally qualified CPS staff to conduct proceedings in magistrates' courts which may result in the defendant receiving a prison sentence. Of course, foreign criminals who have committed serious offences, but who cannot be removed from the UK, should not receive permanent immigration status. But surely the Part 11 proposals are unnecessary. The Secretary of State can achieve the same ends by granting discretionary leave, reviewable every six months. Finally, and in particular, we strongly oppose the proposed amendment to the 1968 appeal Act which would permit convictions based on the gross abuse of the investigation or prosecution process. The changes would lead to a perception that convictions were unreliable and unfair.

The debate itself dealt with many things; but broadly speaking there were five matters of note. The first is the question of the dignity of citizens—citizens' rights—and a range of related issues that were dealt with by a number of noble Lords. I recall in particular the speeches of my noble friend Lady Warsi, the noble Lord, Lord Patel of Bradford, and the right reverend Prelate the Bishop of Salisbury. My noble friend Lady Warsi made a valuable analysis of the difficulties we have with integrating our society. She said first that we cannot legislate these problems away, and how true that is. Secondly, she advised us, again correctly, to concentrate above all on the right to equal treatment. Equality is a fundamental constitutional value in this country, so why have we been so weak in emphasising it in community relations? The third point to emerge from her speech was that our own behaviour is often a bad advertisement for our society. Here we are, advertising all our great traditions, but in many ways we are a very badly behaved society and our values are not immediately attractive to parents who are immigrants. We need to think hard about the image that we project to new arrivals to this country. All those points made by my noble friend were of great value, and they were supported with equal eloquence by the noble Lord, Lord Patel of Bradford, and the right reverend Prelate the Bishop of Salisbury.

For the principle of citizenship to work, the Government have to ensure that citizens have real power. A good example of citizens who ought to have real power, who were told that they ought to have it but did not receive it, was that given by my noble friend Lady Shephard. She quoted from a Government paper the expression,

"empowering the aspirations of citizens".

As an example of where that certainly is not happening, she mentioned local government in Norfolk. Despite an overwhelming rejection of proposals for a unitary authority, nevertheless Norfolk has been told that it is going to have one. I ought to say that in my own county of Shropshire, we have experienced exactly the same story.

Another important theme was that of devolution. Here I incline very much towards the view of the noble Lady, Lady Saltoun, on the recent proposals made by Sir Malcolm Rifkind as to how the West Lothian question might be resolved. I believe that the noble Lady said that it would put an end to friction with England, upon which Scottish nationalism thrives. I respectfully agree with her, but I am aware that my noble friend Lord Trimble has hesitations about this. In particular, he is concerned about defining what exactly is an English matter. I agree that to define it precisely would take an eternity. If Sir Malcolm's ideas are to work, inevitably one has to make certain arbitrary judgments about what is and is not an English matter. That, after all, has been at the core of the drafting of the devolution legislation for Scotland, Northern Ireland and Wales. This issue will have to be confronted by the Government sooner or later. Why not confront it now? And why not have a referendum in Scotland now, as my noble friend Lord Forsyth urged, and as indeed did the noble Lady, Lady Saltoun? My noble friend Lord Forsyth got to the core of another problem when he explained about the distribution of funding throughout the United Kingdom and rightly urged the Government to look at this matter and produce a system of fair funding.

The noble Lord, Lord Goodhart—who it is extremely good to see again emerging from his lair as the chairman of a most distinguished committee—drew our attention to the question of court fees and, in particular, the disgraceful surplus of £34 million that was made last year out of litigants. I wholly share his view, as he knows because we have participated in more than one debate on it. I also share his view about the Ministry of Justice—not as a matter of principle because I know that he has always been a good supporter of it—but because of the linking of the prison and probation functions with the other functions of the Ministry. This is not desirable. It makes justice look as though it is part of an administrative process, and that will undermine the important principles to which we adhere.

I have two final thoughts. The first is about what the noble Lord, Lord Borrie, said in his exhilarating contribution to today's debate. On the question of the prerogative, I think in connection with treaty powers and the declaration of war it is undesirable to place those two matters on a statutory basis, if only because it will make them susceptible to judicial review. I far prefer the route whereby the prerogative is maintained but increasing powers are given to Parliament.

The key to the war-making question is that because Parliament cannot know all the information which leads the Government to ask for Parliament's support, some alternative way of informing Parliament to an extent sufficient for it to make a sensible, objective judgment is desirable. Parliament must be confident that all the departments, institutions and individuals which provide the information to the Cabinet allowing it to make up its mind have been properly consulted. We must be clear that the Foreign Office has been properly consulted and has given a measured judgment; we must be clear that the intelligence services have done the same; we must be clear that the chiefs of staff have done the same. Anyone reading the Hutton and Butler reports will come to the conclusion that none of those criteria was met over Iraq. If Parliament is confident that all those consultations have been made, its decision will be made on a proper, appropriate and informed basis.

I do not think that the power to give Parliament the right to debate and vote before a treaty has been ratified will enhance its power against the Executive. The key thing is: will Parliament be involved before the treaty is signed? Once the treaty is signed, the United Kingdom Government is bound in public international law and there is nothing that Parliament can do between the period of signature and ratification which is capable of changing the substance of the treaty. The most dramatic example of that was the treaty on extradition between the United States and ourselves which we debated, with horror, some months ago. Parliament must be involved in the process of negotiation. I understand there might be difficulties about this where treaties involve the exchange of confidential information, but certainly it is not beyond the wit of Parliament to set up a procedure whereby, as the negotiations progress, the responsible Minister reports to a joint committee, say, of Parliament. That is the kind involvement we must be looking for.

Finally, the noble Lord rather pulled my leg about American ratification proceedings. The key issue is that only Parliament can fire senior judges. It is vital, therefore, that Parliament is involved in the selection of judges. That can be done in two ways. One is how it was done in the 2005 Act, where the Lord Chancellor, who is himself responsible to Parliament, plays a part in the final stages of selection. If that situation can be maintained then we do not need a parliamentary stage; but if the Lord Chancellor is going to be excluded altogether, the other way to involve Parliament is for it to play a role in the selection procedure. We cannot have judges selected by a committee that has nothing to do with the parliamentary process when Parliament is the only institution that can dismiss senior judges. The last thing I would want, if the Lord Chancellor's role were excluded, would be for us, incidentally, to take upon ourselves the American system of "advise and consent", but other countries like Canada have a much better system, to which we ought to turn if the decision is made to remove the Lord Chancellor altogether. It would be strange for us at this stage to change a procedure that was established in statute only in 2005 and got under way only in 2007.

Finally, I turn to the remarks of the noble Lord, Lord Morgan, who, as usual, made an extremely perspicacious contribution to the debate. He talked—and I am pulling his leg here—about reform being desirable in itself. I hope not. As a Burkean Conservative I rather shy away from reform; but in any event it must have a purpose. It cannot be desirable in itself.

The noble Lord drew our attention to the speech made by the right honourable gentleman the Prime Minister about the desirability of liberty. It was a bit rich for the Prime Minister to be lecturing us on the subject. He was a key member of the Government from 1997 to 2007 before he became Prime Minister, and just look at that Government's record on liberty: strenuous attempts to get rid of jury trial and, with the 90-day limit, in effect to remove habeas corpus from the face of our law, if your Lordships recall; secretly negotiating with the United States to remove the right of citizens to have a prima facie case made against them before they could be extradited; the removal of the right not to have your previous offences put before the court the destruction of the centuries-old common-law rule against propensity. That is a terrible record. If the Prime Minister is capable of improving on it, he will only be improving on the previous 10 years of his own Government's disastrous decisions. I am delighted that the Prime Minister is thinking about this; but let no one pretend that this Government do not have an appalling record on all these issues.

Photo of Lord Morgan Lord Morgan Labour

My Lords, I am flattered by having this panoply of attention from the noble Lord. I said exactly that. I made remarks about Achilles heels and so on, which possibly slipped the attention of the noble Lord.

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

My Lords, I was attacking not the noble Lord, Lord Morgan, but the Government of which Mr Brown was a prominent member, although that may now prove rather inconvenient to him.

I have long overstayed my welcome. I shall end by saying that it is going to be difficult to redress the balance between the Executive and Parliament—or at least between the Executive and the House of Commons—because the majority party is required to do two mutually conflicting things: to keep the Government in power but at the same time to keep it under control. How can you do both things at the same time? That is the fundamental issue that we have to face in our constitution.

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 9:00 pm, 12th November 2007

My Lords, it is a formidable challenge to respond to what has been an excellent and wide-ranging debate in the 20 or so minutes that I am allowed. Although I do not see the noble Baroness, Lady Neville-Jones, in her place, I pay tribute to her for her opening remarks and welcome her to her Front-Bench position. I pay tribute also to the noble Baroness, Lady Miller of Chilthorne Domer. She has a deserved reputation in the House for hard work and she made an excellent contribution. I welcome her to her new role.

There can be no higher purpose for a government than to ensure the safety and welfare of their citizens, but as noble Lords on all sides of the House commented, safety and welfare are more than protection from harm; they also concern protecting our hard-won freedoms and liberties. I say to the noble Baroness, Lady Falkner, and the noble Earl, Lord Onslow, that the debate centres on striking the correct balance between individual liberties and the security of the people who live in this country. I say to the noble Baroness, Lady Tonge, that we have not ratcheted up the fear of terrorism. As the noble Baroness, Lady Neville-Jones, said, we should listen to the words of the director-general of MI5 when he described the threat faced today, which is growing in scale and complexity. He reported that, in the UK, the police and MI5 are contending with 30 plots and 200 networks comprising 2,000 individuals. We have to deal with that threat, but our response is bound by morality and law. I say to the noble Lord, Lord Dholakia, that the Counter-Terrorism Bill seeks to strike that balance.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, Mr McNulty came to the Joint Committee on Human Rights in the summer and said that the threat had not got worse. Peter Clarke said to the same committee about three weeks ago that the threat had not got worse since 2005. What has changed to make the period of 28 days' detention need to be increased?

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 advice that I have, and as the director-general of MI5 has said, is that we face a very severe threat and that it has worsened. Noble Lords will rightly be concerned and exercised to ensure that we have a full debate about the length of pre-charge detention. My noble friend Lord West of Spithead made it clear that the Government look for consensus on this issue. I assure noble Lords that that is the basis on which we enter those debates.

However, based on the threat that we see and have been advised exists, we believe that there is a case for going beyond the 28 days in the future. I reiterate that that would be only in exceptional circumstances where there are multiple plots, links with multiple countries or exceptional levels of complexity. It is true that there has not yet been a case where 28 days has been inadequate, but all 28 days were needed for the August airline plot. I reiterate that any increase in the limit should be balanced by strong judicial oversight and parliamentary accountability, as my noble friend Lady Goudie suggested.

Noble Lords have made great play of the fact that the Government have not specified a number of days that they wish to see. I understand that noble Lords and Members of the other place will want to focus on the maximum figure for the extension of pre-charge detention, but that is the point about the consultation that is being embarked on. The important thing is that we consider the case as it stands and, in the light of that, consider whether there is an argument for going beyond the current limit.

The noble Lord, Lord Kingsland, asked about comparisons with other countries. It is not easy to compare figures on this with other countries, as many have different systems and approaches to ours and investigations may continue long after the original charge. We have said from the outset that we want a wide-ranging discussion on pre-charge detention. As part of that we have welcomed the recent contribution made by Liberty, and we shall consider that report very carefully indeed. As for the question of resources, the budget for the security and intelligence agencies will continue its historic real-terms growth since 2001, with real growth over that period of 9.6 per cent a year.

The noble Baroness, Lady Neville-Jones, and my noble friend Lord Judd have referred to the cross-party review on privy counsellor terms, which is looking into the matter of intercept. I do not want to pre-empt that review, although clearly we shall need to consider its deliberations very carefully.

Control orders are an important part of the tool kit that we are considering. There are proposed legislative amendments that will impact on control orders. Those amendments will, I am sure, allow the wider debate that the noble Lord, Lord Kingsland, requested.

Of course, noble Lords have been concerned about the impact that this debate and forthcoming legislation will have on the Muslim community. The powers in the legislation proposed are not aimed at a particular race or religion or any other group. They are aimed purely and simply at terrorists, whatever background or section of society they may come from. I say to the noble Lords, Lord Dholakia and Lord Patel of Bradford, that of course we believe in sharing and improving our partnership with the Muslim community and with the shared aim of combating legislation. We have a long and strong history of community relations in this country and we must not allow terrorist atrocities to undermine them. It is our goal to create an inclusive and safe society for all. We must and shall continue to work with the Muslim communities to increase their sense of inclusion. I say to the noble Baroness, Lady Neville-Jones, that preventing radicalisation is a key issue for our "prevent" strategy.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

My Lords, before the Minister leaves the question of 28 days' detention, is he saying that more than 28 days would be compatible with our obligations under Article 5 of the European convention?

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

Yes, my Lords, that would be my understanding. I am happy to write to the noble and learned Lord in more detail, but that is certainly the advice that I have received.

A number of noble Lords, including the noble Baroness, Lady Hanham, raised the question of the police and the position of Sir Ian Blair. My right honourable friend the Home Secretary wrote to Mr David Davis on 6 November, making it very clear that the death of Mr Menezes was a profoundly shocking tragedy. The Metropolitan Police have rightly used the past two years to act on the reports of the Independent Police Complaints Commission and Her Majesty's Chief Inspector of Constabulary to make sure that those lessons are learnt both in the Metropolitan Police area and across the country.

It is the job of responsible politicians to place events in their proper context. This tragedy occurred 15 days after 52 people were brutally murdered in the 7/7 bombings and one day after four more potential suicide bombers again threatened the lives of Londoners. The commissioner has presided over many improvements in London with a dramatic drop in crime and a roll-out of neighbourhood policing in each of the 624 wards a full two years early. My right honourable friend said that she had full confidence in the Metropolitan Police and the commissioner to continue to police London and to lead the fight against the serious and sustained terrorist threat that we continue to face. She went on to make the point that split-second decisions have to be made in life and death policing operations. We need to consider very seriously the impact of our words and the strength of our support on those who do so. My right honourable friend has said very clearly that it is her job to back those who risk their lives to protect the British people from that terrorist threat. She considers that if the commissioner were forced to resign, it would create a climate which would make it all but impossible for future commissioners to take difficult decisions over matters of the gravest importance.

I turn to the Criminal Justice and Immigration—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, will the Minister provide the figure for persons currently employed in the high-tech unit of the anti-terrorist squad to deal with the disembowelling of computers, as I call it, which is one of the time-consuming operations for the police? Certainly, I should like to be provided with that figure and I suspect that others might want it too.

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 am happy to try to find that figure and make it available to my noble friend. The point that I was making was that a substantial increase in resources in the overall work to combat terrorism has been made by the Government over the past few years.

On the Criminal Justice and Immigration Bill I say to the noble Lord, Lord Kingsland, that we look forward to debating the issues that he raised. I do not agree with him about CPS representation in magistrates' courts but I have no doubt that we will have very interesting discussions.

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, it is not a question of being cheap but of ensuring that resources are used as wisely and effectively as possible. We believe that the Criminal Justice and Immigration Bill will build public confidence in the sentencing framework. Indeed, it addresses some of the points that noble Lords made about sentencing policy and its impact on prison population. Our aim is to have a sentencing framework that imprisons the most serious and dangerous offenders. However, I say to the noble Baroness, Lady Miller, that at the same time we want to ensure that tough and effective community sentences are available for other offenders, particularly young offenders, to avoid resorting to custodial measures. I very much agreed with the noble Lord, Lord Dholakia, about young people and criminal offences.

Noble Lords referred to the number of Criminal Justice Bills that have been passed in the last few years. My understanding is that 56 such Bills have been passed since 1997. I say to noble Lords opposite that we reckon that 68 such Bills were passed by the Conservative Government between 1990 and 1997. The point is the product of that legislation, and the fact is that legislation passed since 1997 has had a significant impact on cutting crime and protecting the public. We have seen that in the reduction by one-third since 1997 of those crimes that affect most people in this country. I have noted the comments by the right reverend Prelate the Bishop of Liverpool on incitement to homophobic hatred. I also noted the comments made by the noble Lord, Lord Elystan-Morgan, on matters relating to self-defence. I am sure that we will discuss that in future.

The prison population is at record levels, and it is presenting a considerable challenge to Her Majesty's Prison Service. We are locking up 60 per cent more violent and dangerous offenders than a decade ago. They are being locked up for longer; average sentence length has been increased. We have to balance that by the use of tough community sentences for those who are convicted, where it is most appropriate. We await with great interest the outcome of the review by my noble friend Lord Carter of Coles. Alongside the challenge of the current prison population, we have seen a reduction in reoffending rates, and we are seeing the increasing use of community sentencing.

The noble Lord, Lord Dholakia, and the noble Baroness, Lady Howe, asked about the rehabilitation of offenders, which remains a priority for the Government. I know that the noble Lord is concerned to see the outcome of the review of the current legislation. I assure him that it is being very carefully considered. I fully understand the point that he made about the revolving door. That is why we see the key as being to limit the use of short custodial sentences by unlocking the potential of community orders.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords (Communities), Department for Communities and Local Government

My Lords, I am grateful to the noble Lord for giving way. There is a consensus in this House among the Conservative Front Bench, the Liberal Democrats and Members on the independent Benches, who have in the past supported the idea of reform of the Rehabilitation of Offenders Act. Why is it not possible to introduce a measure of this nature in the forthcoming criminal justice Bill? Why do we have to wait until the Government make up their mind? At the end of the day, the arguments are very simple. If you believe in rehabilitation, this is one area that will substantially help the Government in rehabilitating offenders.

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 Lord will know that we debated this in an Oral Question about two weeks ago. I do not think that I can go any further than what I said then. He will know that we keep this matter under review, but it has to be seen in the context of the wider government programme of the rehabilitation of offenders and the programmes inside prisons. I say to the noble Baroness, Lady Falkner, who talked about prisoners with mental health issues, that there has been a considerable increase in investment in the amount of money spent on prison health services and in the amount of money spent on offender learning. Clearly, we have to continue to ensure that the emphasis is maintained in that area.

Noble Lords have expressed regret about our inability to bring forward a Bill on coroners this Session, and I understand that concern. I assure the House that the Government remain committed to reform and that the Bill has been deferred and not abandoned. We will look to see what can be done in the mean time to strengthen the coroner process.

On legal aid, for which the noble Lord, Lord Goodhart, knows I am responsible, I am happy to discuss this further with him. He is right to suggest that we spend £2 billion on legal aid. It is the most generous legal aid system in the world. We want to see a rebalance of resource from criminal legal aid to civil legal aid. Reforms are necessary to ensure that the money is used as wisely as possible. It is the responsibility of the Legal Services Commission to ensure that there are no gaps in provision and I will make sure that it carries out that duty as effectively as possible

Constitutional renewal is a matter of great moment and I welcome the generally supportive comments that I think I detected in the House for the programme announced by the Government. It is significant that their approach is to break up concentrations of executive power and to abolish royal prerogative powers. I understand fully the concerns of the noble Lords, Lord Norton and Lord Maclennan. Both acknowledged the significance of the proposals on war-making powers and that of treaties. I very much agree with the noble Lord, Lord Norton, on the importance and assistance that draft Bills and pre-legislative scrutiny can bring and I agree with him on the importance of post-legislative scrutiny. We have debated these matters previously. I assure the noble Lord that the Government want to publish as many draft Bills as they can. The Government recognise their value. He asked how decisions were made—they are made within Government as part of the discussions on the legislative programme. I am advised that we will respond shortly to the Law Commission's report on post-legislative scrutiny.

The noble Baroness, Lady O'Neill, made a learned contribution. She argued for settled and known laws. As I have worked in the public sector for most of my life, I understand the challenges on practitioners there in coming to grips with legislation. I understand also the challenge that they face if legislation is constantly changed. On the other hand, we must recognise that the pace and complexity of the modern world poses real challenges for government and the need for up-to-date legislation. I accept that it is important to be sure of the need for new legislation and that is where pre-legislative scrutiny in particular comes into play.

The noble Baroness, Lady Shephard, challenged me on my understanding—or, perhaps, lack of it—of the current state of play of local government restructuring. As a member of Oxford City Council many years ago, I still rue the day of the 1974 reorganisation when one of the finest county borough councils in the country was decimated to become a non-metropolitan district council. I find it hard to forgive the party opposite for what they did.

Photo of Baroness Shephard of Northwold Baroness Shephard of Northwold Conservative

My Lords, I am sure that the Minister will be fair enough to accept that that was an announced intention of the Government of the day, whereas what is happening in two-tier authorities appears to be reorganisation by stealth.

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, my understanding is that my right honourable friend the Secretary of State for Communities and Local Government took the view that there was not a reasonable likelihood that the proposal made by Norwich City Council would meet the outcome specified by our criteria. She is minded to refer the proposal to the Boundary Commission and ask it to look at local government structures in Norfolk, with a view to it making an alternative proposal. If the Boundary Commission decides to make an alternative proposal, it must first publish and consult on a draft of that proposal and have regard to any representations made to it before submitting that alternative proposal. I would certainly hope that the people of Norfolk would have an opportunity to make their feelings known on that.

My noble friend Lord Borrie made some very interesting points, particularly about judicial appointments. We have debated that issue before. I make it absolutely clear that at this stage the Government have made no firm recommendations on parliamentary involvement. We have already made it clear that we would have serious reservations about the introduction of confirmatory hearings, which we believe could lead to politicisation and undermine judicial independence. However, it has been suggested that it might be suitable for the very senior judiciary to be asked to come before an appropriate Select Committee to talk about the administration of justice, but not in the specific context of post-approval hearings. Clearly, we will listen very carefully to views on this matter.

I understand the points raised by my noble friends Lord Morgan and Lord Judd concerning a draft Bill of Rights, but it is fair to say that we believe that nothing in the Human Rights Act has had any impact on the Government's ability to fight crime and protect the UK from terrorist threats. We recognise that some of the difficulties faced by the Act may have stemmed from a lack of explicit balance in its expression. We said that we think there is a need to draw out explicitly the responsibilities that have always been implicit within the convention and the Act, and that is why my right honourable friend the Lord Chancellor will publish a draft Bill of rights and responsibilities, which will build on the excellent basis of the Human Rights Act. I hope that that reassures my noble friends.

We had a very good discussion about devolution and the state of the Union. My noble friend Lord Jones felt that the Welsh Assembly had been a qualified success. The noble Lord, Lord Trimble, approved the devolution arrangement within, as he said, the sovereignty of the Westminster Parliament, and I certainly warm to that. The noble Lord, Lord Forsyth, fears for the Union in the light of the action of the current Scottish Executive and what he described as English resentment about the devolution settlement. I am not sure that he is right on that latter point but I agree with him on the crucial importance of the Union. I say also to the noble Lady, Lady Saltoun, that the Government believe that the Union benefits all the people of the UK. It reflects our shared history and heritage, and it supports our successful participation in a global economy. However, we think that the devolution changes have been successful. They deliver flexibility and allow the devolved Administrations and legislatures the ability to deliver distinct devolved policies but with a single Government of the UK taking a UK view on the strategic and major issues affecting the UK.

I am sorry that my noble friend Lord Barnett was not present to hear the debate on the Barnett formula. We think that it has delivered transparent settlements for Scotland, Wales and Northern Ireland over successive Administrations for almost 30 years. It is an established and tested formula, and, for that reason, we have no plans to change it. So far as concerns blaming Barnett, in a sense, for decisions made in Wales and Scotland that are different from those made in England, I stress that the Barnett formula provides a block of money to the devolved Administrations, but what they then decide to spend it on is a matter for those Administrations.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

My Lords, I am grateful to the Minister. However, surely he recognises that no one is complaining about the Barnett formula, which gives Scotland, like England, a proportionate share according to population. People are complaining that the baseline expenditure is much higher relative to the rest of the United Kingdom and that there should be a needs-based assessment. Barnett was meant to bring that about over a number of years, but for a variety of reasons under successive Governments it has failed to do so. Will the Minister address the real issue, which is to have fair funding for the whole of the United Kingdom?

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 knew that it was tempting fate to open up the question of the Barnett formula. My understanding of the Barnett formula is that it makes the same pound per head changes that will eventually lead to convergence in expenditure north and south of the Border. We shall come back to that issue in the future.

Like the noble Lord, Lord Tyler, I regret that the consensus on party funding appears to have broken down. I urge the party opposite to consider carefully the decision it has taken. We will bring forward proposals very shortly on the regulation of party finance and expenditure. We believe that reducing expenditure is the central way forward and is likely to command the greatest level of public confidence.

I shall not refer to Lords reform because we shall have ample opportunity to discuss it again. I shall simply end by saying to the noble Lord, Lord Smith of Clifton, that he raised some interesting points on savings and efficiency, and indeed on the importance of integrated schools. In response to the noble Lord, Lord Laird, it is unhelpful to use parliamentary privilege to speculate on a particular murder case, but I acknowledge that it was a brutal and horrific crime, and our sympathies are very much with the Quinn family.

My time is up. It has been an excellent debate and I wish to thank all noble Lords for their contributions. I return to what I said at the beginning. Noble Lords have expressed great concern about the impact of counter-terrorism measures on the liberty and freedom of the British people. I assure noble Lords that while it is clearly of the utmost importance—indeed, the first importance—for any Government to ensure the security of their people, we are as mindful as any Member of this House about the hard-won liberties and freedoms of the British people. Our task is to achieve a balance between the two, which is what we aim to do, and we look to the assistance of your Lordships' House to do so.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

My Lords, on behalf of my noble friend Lady Andrews, I beg to move that the debate be adjourned until tomorrow.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at 9.33 pm.