Constitution

– in the House of Lords at 3:52 pm on 25th March 2008.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 3:52 pm, 25th March 2008

My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Lord Chancellor in another place. For the convenience of the House, I should make it clear that in reading this Statement, where a reference is to "this House", it refers to the other place.

"With permission, Mr Speaker, I should like to make a Statement about our programme of constitutional renewal. With this Statement are published a White Paper, the draft Constitutional Renewal Bill and an analysis of the responses to our consultations. Copies of these are available in the Vote Office and on my Ministry's website."The accountability of government is fundamental to the health of our democracy. Arbitrary action and lack of transparency can subvert that, but, for decades, the royal prerogative has been used by successive governments to expand executive power. Last July, my right honourable friend the Prime Minister announced his determination that the Government he leads would reverse this process and surrender significant executive powers to Parliament or otherwise limit them. Following my right honourable friend's July statement and the accompanying Governance of Britain Green Paper, five consultation papers were issued. I am grateful to all who responded. We have taken account of their views in the White Paper and the draft Bill."The draft Bill is in five Parts. Protest around Parliament: in July the Prime Minister undertook to consult widely on managing protests around Parliament to ensure that people's right to protest was not subject to unnecessary restrictions. Our view is that Parliament itself is best placed to decide what needs to be secured to ensure that Members are able freely to discharge their responsibilities. Clause 1 of the draft Bill therefore repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005. We invite the views of Parliament on whether additional provision is needed to keep open the passages leading to the Palace of Westminster and to ensure that, for example, excessive noise is not used to disrupt the workings of Parliament."The Attorney-General: Part 2 of the Bill sets out major reforms to the role of the Attorney-General and the management of prosecutions, to make the arrangements more transparent and to enhance public confidence. The proposals involve recasting the relationship between the Attorney and the prosecuting authorities. In particular the Attorney will cease to have any power to give directions to prosecutors in individual cases, save in certain exceptional cases which give rise to issues of national security. The Attorney will have to report to Parliament on any exercise of that power."By Clause 3 there would be a protocol which will set out how the Attorney and the prosecuting authorities are to exercise their functions in relation to each other. This will be laid before Parliament, as will an annual report. We do not propose changing the Attorney's role as chief legal adviser to the Government or his or her attendance at Cabinet."Judicial appointments: Part 3 of the Bill builds on the significant reforms introduced by my right honourable and noble friend Lord Falconer to reinforce the independence of the judiciary. The Bill proposes to remove the Prime Minister entirely from making judicial appointments, and the Lord Chancellor from appointments below the High Court. "Treaties: Part 4 of the Bill makes it a statutory requirement that treaties must be laid before both Houses of Parliament before ratification. If this House were then to vote against ratification the Government could not proceed to ratify it."While this is obviously a matter for Parliament, the White Paper suggests that a valuable role could be played by committees of either or both Houses in the scrutiny of treaties prior to ratification. I should just say these proposals do not affect the current arrangements for EU and tax treaties which already have a statutory procedure attached to them."Civil Service: Part 5 of the Bill will for the first time put the Civil Service on a statutory footing by enshrining the core values of the Civil Service—impartiality, integrity, honesty and objectivity—into law, as well as the historic principle of appointment on merit. The Bill makes provision for special advisers and the Civil Service Commission. The Bill has benefited from the detailed comments on the draft Civil Service Bill in 2004 and from the work of the Public Administration Select Committee. I am grateful for their help."I now turn to the other key proposals in the White Paper. "War powers: there was a widespread welcome in July for my right honourable friend the Prime Minister's proposals that the Government should limit the Executive's powers to deploy Her Majesty's Armed Forces into conflict situations. As well as from those who responded to the consultation document we have also benefited from earlier Select Committee reports from both Houses. In the event there was significant support for the recommendations from the Lords Constitution Committee."What we are now proposing is that Parliament's role should be both enshrined and guaranteed by a resolution of this House. A detailed draft of this is set out in the White Paper. It would require the Prime Minister of the day to seek the approval of this House before deciding to commit forces into armed conflict abroad. It requires him to lay a report before this House setting out the terms of approval sought and information about the objectives and legal matters relating to the armed conflict. There are exceptions to this in relation to emergencies and operational secrecy, with a requirement in such cases to inform but not to seek retrospective approval. Special forces would be exempt from any of these provisions. These changes, if agreed, would define a clear role for Parliament in the most critical of all decisions to face a nation, while ensuring that our nation's security is not compromised."Public appointments: last July's Governance of Britain Green Paper contained proposals on increasing parliamentary scrutiny of some public appointments. Since then, this has been considered by the Liaison Committee. We will respond to its recommendations shortly."Dissolution and recall of Parliament: on the dissolution and recall of Parliament, proposals have already been made to the Modernisation Committee. We look forward to hearing its views. "The Intelligence and Security Committee: last Wednesday in his Statement on the national security strategy my right honourable friend the Prime Minister said:

"We will ... immediately go ahead to introduce a resolution of both Houses—in advance of any future legislation—that will enshrine an enhanced scrutiny and public role for the Intelligence and Security Committee".

The White Paper sets out these arrangements in detail."Executive prerogative powers: the Government are committed to reviewing the prerogative power with regard to issuing passports. Draft legislation will be published in due course."The Government are also reviewing the remaining executive prerogative powers; for example, the prerogative to grant mercy. The Government will consider the outcome of this work and will consult on how we plan to proceed."Appointments to the Church of England: the Government remain committed to the establishment of the Church of England, and greatly value the role played by the church in our national life. Appointments to senior church positions will continue to be made by Her Majesty the Queen, who should continue to be advised on the exercise of her powers of appointment by one of her Ministers, who will usually be the Prime Minister. We are very grateful to the General Synod for its proposals on how new appointments procedures should work and the Government are discussing with the church future long-term arrangements."Flag-flying: the Government received more than 300 responses to consultation on the flying of the union flag. In line with the majority of responses, we have decided that the interim change made to the guidance to allow government departments to fly the union flag whenever they wish should now become permanent. There are no plans to change the arrangements for flag-flying in Northern Ireland. "Modern constitutional arrangements: good law is imperative to accessible and modern constitutional arrangements. For 40 years, the Law Commission has played a vital role in this regard. I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government's intentions regarding outstanding Law Commission recommendations and by providing a statutory backing for the arrangements underpinning the way government work with the Law Commission. These changes sit alongside those which the Leader of the House announced last week, which will strengthen the scrutiny of laws after they have been enacted by Parliament. "We are ensuring that our constitutional arrangements continue to meet the needs of the public we serve. On reform of the House of Lords, I should tell the House that discussions in the cross-party working group are proceeding well. We are on track to publish a White Paper before the Summer Recess. "Over the coming months, we will publish a Green Paper on a British Bill of rights and responsibilities, and on the values which should bind us together as citizens. Today, my right honourable friend the Secretary of State for Scotland has announced that Professor Sir Kenneth Calman has agreed to serve as chair of a commission to review the Scotland Act. Such a commission was proposed in and approved by the Scottish Parliament. The Government welcome that Parliament's support for the aim of strengthening devolution and securing Scotland's place in the union. We are giving our full support to this cross-border, cross-party review. "The proposals in the White Paper and draft Bill go to the heart of how power in a modern democracy should be exercised. They are not a final blueprint, but part of the much wider programme towards a new constitutional settlement. They will strengthen the role of Parliament in our democracy, for it is Parliament, the seat of our democracy, which is central to this programme of constitutional renewal. I commend the Statement to the House".

My Lords, that concludes the Statement.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 4:03 pm, 25th March 2008

My Lords, I hope that your Lordships will forgive me for not having read the three-volume edition of the Government's latest views on the constitution, which arrived on my desk some 20 minutes ago. My reaction will have to be based on what the Minister said.

There are some things in the Statement that we welcome, in particular the decision of the Government to reverse the legislation in the Serious Organised Crime and Police Act 2005 about protests around Parliament. We fought against this vigorously, and we are glad that the views that we expressed then have now been adopted by the Government.

We also give a more cautious welcome to the changes involving the Attorney-General. I say "more cautious", because the Attorney-General is accountable to Parliament for the prosecution authorities and for prosecution policy generally. While I can see the force of the proposal to remove the Attorney-General in certain circumstances from individual cases, there remains the issue of how that will be integrated with the noble and learned Baroness's overall responsibilities. I note from the Statement that there is to be a protocol, which I hope will be laid before the House. We await it with keen anticipation, and I trust that it will provide the answer to my concerns about accountability.

We of course welcome the principles to be enshrined in legislation for the Civil Service. It is a great shame that these principles should not simply be, as they have always been up to now, part of our constitutional conventions. But, alas, since they have mostly broken down, I suppose that statute is the only substitute. Nevertheless, I am glad that the principles that the Minister adumbrated are to be included. I am also pleased at his announcement about the Intelligence and Security Committee and the appointments to the Church of England.

Nevertheless, I would not like the noble Lord to escape without some observations of a more critical nature on what he has said. Early on in the Statement he read the sentence of the Secretary of State for Justice:

"But, for decades, the royal prerogative has been used by successive governments to expand executive power".

In fact, historically, the opposite has been the case: the royal prerogative has been steadily eroded for the past 200 years by statute; and the real basis for the expansion of executive power in this country has not been the abuse of the royal prerogative; it has been the passage of Bills giving the Executive increasing delegated legislative powers to make orders and statutory instruments. That is the way the Executive has undermined Parliament, and that has led to the growth of executive power.

Although there are many Statements about rebalancing the Executive against Parliament, they are meaningless unless Parliament gains real control of the Executive in another place. Simply to say that you are going to hand over to Parliament a particular power from the Executive without bothering to mention that, by the way, the Executive are in complete control of what Parliament does, is—if I may say so—an abuse of process. So this is a very unconvincing Statement.

In the one document that I have read, simply because it was published last July and not today—The Governance of Britain—I note that the Government state that one of their concerns is that power remains too centralised and too concentrated in government. There is nothing in the Statement that alleviates any concern about that. Where do the Government in this Statement tackle overcentralisation?

The Minister has talked about war powers. As the Minister knows, we had a long and extremely fine debate in your Lordships' House at the end of January on this issue. I fully endorse the importance of Parliament giving its consent before troops are deployed abroad. Quite apart from the value of parliamentary authority to the troops themselves and, indeed, to the nation, we now have the added problem of the international convention of the criminal court and the requirement that soldiers should be confident that they are involved in a legal war. I am sure that the Government's proposals are absolutely right.

However, the vote will be based on a report, as I understand it, laid before Parliament by the Government. Security matters by their very nature do not allow for Parliament to be told the whole story. That is perfectly understandable, and I make no complaint about that. But Parliament, to take its decision, must be confident that the people who know about those things, the unelected part of the constitution, the intelligence services, the military authorities, the Foreign Office and the Ministry of Defence, have all done what they ought to have done and made the checks that they ought to have made in order to give advice confidently to Parliament. That is the area that the Government should be focusing on. They should be sure that the constitutional arrangements below Parliament, if you like, are working properly, as they manifestly did not do at the beginning of the Iraq war, as we well know from the Hutton and the Butler reports. I respectfully suggest to the Minister that, with the draft Bill, this is one of the things that the Joint Committee should concentrate on very carefully.

The Minister talked about reviewing the prerogative power with regard to the issuing of passports. I would be grateful if the Minister could tell me what the passport review means. I thought that freedom of travel, both internally and externally, was one of the hallmarks of English liberty. Is it not disturbing that freedom of travel is now becoming dependent on attendance at expensive interrogation centres and that the passport is being enmeshed with the Government's flawed ID project? What part of constitutional renewal is it for travellers at Heathrow to be compulsorily fingerprinted?

The question of the review of Scottish matters by Professor Sir Kenneth Calman, who has kindly agreed to serve as chair of a commission to review the Scotland Act, is of course welcome; but will it be part of his remit to look at the role of Scottish MPs determining policy in England?

The Minister talked about the discussions that are going on over House of Lords reform at the moment. He has led us to believe—I have no basis on which to doubt his word, although I have no information one way or the other—that those discussions are going well. Quite what that means—"well" from whose point of view?—he may or may not enlighten us about later on. If the discussions are going well, does he not think that now is the time to make a Statement to the House about what stage they have reached? The House, after all, has an intimate interest in this matter; it has expressed its views in no uncertain terms. Will the Minister give an undertaking, at the earliest possible moment, to come to your Lordships' House and give us an up-to-date account of where the discussions are?

The Minister also spoke about a Bill of Rights. The noble Lord says that over the coming months the Government will be publishing a Green Paper on a British Bill of rights and responsibilities, and on the values that should bind us together as citizens. Does that mean that the European Convention on Human Rights is in some way inadequate for our purposes and that it needs filling out or perhaps even amending? If so, which particular aspects of the convention are not—to quote a former Minister in his Government—"fit for purpose"? It may well be, for example, that the Minister might like to enshrine the right to jury trial in a new Bill of Rights or perhaps the presumption of innocence, which has been so savagely eroded by a series of criminal law measures over the past 10 years by the Government. I am extremely curious to know what particular issues—specific issues—the Minister has in mind on a Bill of Rights.

I have reacted to what the Minister said. I have not had the opportunity to read the various documents, which no doubt will be gone over in great detail by the Joint Committee that will be appointed.

Photo of Lord Tyler Lord Tyler Spokesperson in the Lords, Ministry of Justice 4:13 pm, 25th March 2008

My Lords, we, too, on these Benches thank the Minister and his colleagues for giving us a little advance notice of a very detailed Statement, White Paper and draft Bill.

At the beginning of this process, the Prime Minister in his first speech in the other place said:

"The right of all the British people to have their voice heard is fundamental to our democracy".—[Hansard, Commons, 3/7/07; col. 818.]

We certainly agree with that. We are encouraged to see, in the foreword to today's White Paper, that the Lord Chancellor said that the objective is to,

"deliver the fairest possible distribution of power in our society".

In that context, frankly, the Statement today, the White Paper and even the draft Bill are mice. To wait for so long—from last July—for their gestation has been a frustrating exercise. We had hoped for more, because the purpose of the exercise is not a little tidying up, but to re-engage our fellow citizens in the democratic institutions of our country—both local and national—and to "reinvigorate our democracy". I do not think that there is quite enough here to do that.

I shall turn to the detailed points in the Statement and the White Paper. We certainly support the abolition of the ridiculous crime that was introduced of a protest in and around Parliament. The Minister will recall that my noble friend Lady Miller of Chilthorne Domer introduced a Bill at the beginning of the year that would have done that very neatly; we would not have had to wait for a Joint Committee or a draft Bill, or had any other delay. This is yet another example of where legislating for a knee-jerk reaction means that we all repent at leisure.

We have some concerns—they were expressed again by the noble Lord, Lord Kingsland—about precisely to whom the Attorney-General is to be responsible and accountable. Is it to Parliament as a whole, or is he or she still adviser to the political party that happens to be in government at the time? There are clearly circumstances where the exclusion for national security, which was referred to in the Statement, might include such highly charged political issues as the BAE Systems contract with the Saudi Government or the difficult situation that arose in the run-up to the Iraq war. The White Paper does not adequately address the concerns that came from the resignation letter of Elizabeth Wilmshurst, which noble Lords will recall raised important questions about apparent political bias in the way in which the Attorney-General gave advice to the Government.

We have an anxiety that, for public and to some extent judicial appointments, Secretaries of State—not just those who happen to be heads of quangos or have other appointments under the state—should have to answer to parliamentary scrutiny and accountability. The Secretary of State should be the one brought to a Select Committee—perhaps a joint one—on the appropriate department, so that there could be a proper interrogation of his or her intentions in that department. If we are to have new, confirmatory hearings, surely they should be within Parliament, of parliamentarians.

It was significant that the Minister had to make a mini-introduction to his Statement to emphasise that, every time "this House" was referred to in the Statement to the other place, it did not mean your Lordships' House. It is true that the Statement and the White Paper do not explain the exact role of your Lordships' House in relation to the ratification of treaties. It is clear that the other place has a right to veto ratification, but what is the responsibility of your Lordships' House in that matter? I hope that we can have an explanation. Similarly, on war powers, I was a Member of the other place at the time of the debate on the decision by the Government to go to war in Iraq. I have no regrets whatever for voting against that, but I was conscious at the time that there was expertise and great concern in your Lordships' House. What role will there be in future if that proposal goes forward and the prerogative power is modified or removed?

There will be wide concern about the role of special advisers in possible instruction or direction of professional civil servants. I do not see a clear statement of what change is to take place on that in the draft Bill when we put the Civil Service on a statutory basis, welcome though that obviously is. As has already been said on the role of Parliament in relation to dissolution or recall of Parliament, assuming that the Government of the day have a majority in the other place, it is to some extent a fig-leaf and not a real change. In certain circumstances, it might constrain the role of the monarch. If the other place has no overall majority, as is the case in your Lordships' House, that might be a more meaningful vote; perhaps we should have a vote in this House as to whether the other House should be dissolved or recalled.

The gaping hole is the lack of a single reference to the very recent and very useful government report on voting systems, which must surely be at the heart of a representative democracy. As became apparent when we had a debate just 10 days or so ago, it is extraordinary that only about a third of those elected to the other place these days can claim to represent a majority of those who voted in their constituencies, and not one single Member of Parliament now can claim to have a majority supporting him from the whole of his registered electorate. If we are going to have a British Bill of Rights, surely a very basic right of a British citizen is to be able to see his or her vote as having equal value to everybody else's.

Can the Minister confirm or deny the report on the front page of yesterday's Guardian that the Government are considering a reform of the voting system? If so, why was that leaked to the media rather than given as a Statement to your Lordships' House when the Minister addressed us on 13 March? True or false, perhaps he would like to confirm that there have been no discussions or consultation with other parties—certainly not with the Liberal Democrats. If Parliament is to be,

"the seat of our democracy", as the Statement says, surely the confidence of our fellow citizens that they are truly and fairly represented in Parliament is a critical factor if we are to renew confidence in our parliamentary systems. This Statement goes a very small way to reviving interest in our parliamentary institutions but that revival will not be sufficient to re-engage the public unless it is a great deal more radical in future.

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 4:21 pm, 25th March 2008

My Lords, I welcome the comments of the noble Lords, Lord Kingsland, and Lord Tyler. I congratulate both noble Lords on their perceptive remarks with such short notice. I welcome the support that the noble Lord, Lord Kingsland, has given to a number of the proposals encompassed within the debate. In relation to the SOCAP legislation, as the Statement suggested, it is important that access to Parliament is kept open. Therefore, we will be consulting Parliament on any additional measures that might need to be taken in the absence of the legislation which the draft Bill makes provision for repealing. I welcome his general comments on the question of the changes to the Attorney-General's position. He is right about the accountability of the prosecution authorities and our intent is that that would be covered in the protocol that will be laid before Parliament in due course. As far the legislation of the Civil Service is concerned, I do not agree with him that the system has broken down. I pay tribute to the Civil Service and the integrity of those people who work for the Government. On the expansion of executive power, this White Paper, the draft legislation and the various other developments of policy that the Government have involved themselves in since the original Statement last July are intended to ensure that Parliament can properly hold the Executive to account. I believe that the measures contained in this document allow that to happen. On the development of pre-legislative scrutiny, the fact that this draft Bill that is published today will be considered by a Joint Select Committee in pre-legislative scrutiny is an example of how parliamentary influence has been developed. He may have seen a Statement made by the Leader of the House of Commons last week on the Government's position in relation to post-legislative scrutiny, which I know is a matter close to the hearts of a number of noble Lords, not least the noble Lord, Lord Norton. So we see this as being consistent with the way in which Parliament has been and is continuing to be given more say and influence in the detail of the legislative programme.

As far as decentralisation is concerned, I would point the noble Lord to the new arrangements for local area agreements for local authorities as a real and genuine effort by the Government to give greater discretion to local government. There will be many other examples.

The noble Lord is right to point to the importance of the section on war powers. We had a splendid debate on this matter in your Lordships' House only a few weeks ago and the Government have paid careful attention to the issue by balancing the need, as the Government have seen it, to involve Parliament in such a decision with that of ensuring that that cannot happen at the expense of the safety and security of this nation and its troops. I take what he said about the integrity of the information brought before Parliament. I am confident that that will prove to be the case. Our proposed changes to make the important work of the Intelligence and Security Committee more transparent will enhance public confidence in the integrity of the information that will be provided.

The noble Lord asked about the commission that Sir Kenneth Calman has agreed to chair. Perhaps I may read the terms of reference, which are:

"To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, that would improve the financial accountability of the Scottish Parliament and would continue to secure the position of Scotland within the United Kingdom".

Those terms of reference are pretty broad.

The noble Lord asked me about reform of your Lordships' House. The Statement made clear that the talks in the cross-party group are going well; I am sure that his noble friend, the noble Lord, Lord Strathclyde, would be happy to provide him with further details. In terms of making an early Statement to your Lordships' House, I always welcome an opportunity to discuss Lords reform with Members of the House. The intention is, as set out in the Statement, that we will make a formal Statement on the progress of the cross-party group by the Summer Recess. I do not think that I can say anything further on that matter. It is very important that, as far as possible, we can reach consensus; and then we will of course be happy to make such a Statement.

The proposal for a British Bill of rights and responsibilities is not a reflection of the inadequacies or otherwise of the ECHR, but will help the people of this nation to focus on the values that we share, the rights we enjoy and the responsibilities that we acknowledge to be a foundation of our society.

I turn to the comments of the noble Lord, Lord Tyler. He welcomed the Statement and then said that it was not perhaps as profound and exciting as he would wish. I am sorry about that, because I believe that the Statement and the related work suggest that there has been considerable progress not only towards reporting to the House on the prerogative powers but in terms of enhancing parliamentary scrutiny of the Executive. The changes that I announced today are substantive, but also have to be seen in the context of other measures, such as devolution, the Bill on human rights and the Freedom of Information Act. One has to consider these issues in the round.

I welcome the noble Lord's support on SOCAP. We will ask Parliament for its further views on this matter, particularly in the context of the use of sessional orders in the future. The Attorney-General is accountable to Parliament and is the chief legal adviser to the Government. That dual role has served this country and Parliament well. The arrangements that I have announced today will ensure that that takes place within a more transparent process. There is a real advantage in a Government Minister heading the service that is headed by the Attorney-General.

The British Aerospace decision was taken by the SFO director and not by the Attorney-General. No doubt we will be debating the role of the House of Lords in due course. Any decision on war powers would have to be taken by the House of Commons, as the elected Chamber, reflecting the primacy of that Chamber. I agree that the advice that the House of Lords can make available through a debate would be extremely valuable. With treaties, the intention again is that the Commons should have primacy, but that the view of the House of Lords would be valuable. On the question of special advisers, my right honourable friend the Prime Minister revoked the Order in Council that allowed special advisers to give executive orders. My understanding is that the draft Bill reaffirms the position taken by my right honourable friend. As the White Paper makes clear, special advisers are already subject to a code. As we take forward legislation in relation to the Civil Service, that will have legislative backing.

I suggest that we await the view of the Modernisation Committee in another place on the recall of Parliament. On voting systems—nice try, but of course I will not comment on speculation in the Guardian on bank holiday Monday. We launched the report on voting systems that has been widely applauded for the quality and objectivity of its work. We welcome debate on that matter.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 4:32 pm, 25th March 2008

My Lords, I make a very short point. It is a great relief that the changes to the role of Attorney-General are much less than had been foreshadowed in some quarters. Above all, it is a huge relief that she will remain responsible for giving independent advice to the Government and to Parliament, as she and her predecessors have always done, and that the role will not be transferred to a QC, who would not be a member of either House. I hope in consequence that that we will see more of the present noble and learned Baroness the Attorney-General than we have done in the past few months—she has been much missed—and that she will be present on the Government Front Benches whenever there are difficult legal questions at issue.

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 cannot answer for my noble and learned friend, except to say that the comfort felt by the House is nothing compared to the comfort that I feel when she sits beside me.

Photo of Lord Borrie Lord Borrie Labour

My Lords, I have two questions for my noble friend, the first of which is on public appointments. Can he confirm that whatever proposals the Liaison Committee comes up with on parliamentary involvement, they will not cover judicial appointments, which will be treated separately, and that the Judicial Appointments Commission will continue to have its considerable role in making or advising on appointments, so that there will be no question of an advise and consent arrangement, as operated by the United States Senate? Secondly, the noble and learned Lord, Lord Lloyd of Berwick, was concerned about the position of the Attorney-General. May I assume from the brief references in what we have read today that he or she will continue to be either a Member of this House or a Member of the House of Commons? Does my noble friend agree that that has become particularly important for the chief legal adviser to the Government now that the Lord Chancellor may, by law, no longer be a Member of either House or, indeed, a lawyer of such standing as we have been accustomed to in the past?

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, on the latter point, as the White Paper makes clear, we considered that it would be extremely valuable to have a Minister occupy the role of Attorney-General in terms of the legal advice to be given to Ministers and the Government, as chief legal adviser, and drawing on his or her ministerial role and understanding of the wider ramifications of policies. It follows that the contribution that that person can make by being a Member of either your Lordships' House or another place is clearly very important. Therefore, I very much accept and endorse the remarks of my noble friend.

Although the Government are very keen to see progress on pre-appointment hearings, I confirm that, for the reasons stated by my noble friend, they will not involve judicial appointments.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, the fact that the Minister is able to say with a serious face that the proceedings of the cross-party working group are progressing well can lead one to only one conclusion—that the working group is manifestly unrepresentative of the diversity of opinion that exists on this topic. That statement brings to mind the clock that strikes 13 times and casts doubt on the reliability of the rest of its evidence.

Turning to the more substantial aspect of what he said, the agenda that he has presented to us is hugely ambitious—in fact, I would say that it is hopelessly over-ambitious and potentially very dangerous. It starts off as a programme of constitutional renewal but that includes in some cases "reviewing" and in other cases "building upon", "underpinning", "recasting" and "enshrining"—a whole range of propositions which, as he acknowledges, are fundamental to the working of our constitution and have evolved historically into conventions which are not always perfect but are well understood in practice. I suggest that there is very grave danger in seeking to transform all these enormously important and extensive matters into legislation—above all, astonishingly, for the most part in one Bill.

The noble Lord, Lord Tyler, appeared to be disappointed at the modesty of this programme and was looking for a more extensive and exciting one. I take exactly the opposite view. It seriously underestimates what Lord Moulton, a distinguished Liberal Peer, said in, I think, 1920, when he stressed the huge importance of unwritten law to almost every aspect of every constitution of this kind—above all, given our history. I take one example—the proposal to produce a protocol which will set out how the Attorney-General and the prosecuting authorities are to exercise their functions in relation to each other. That reminds one of the protocol that emerged from the catastrophic legislation which led to the disappearance of the Lord Chancellor, as we had come to know that role. In that legislation, as the House will recall, describing the conventional relationships between the Lord Chancellor and the Lord Chief Justice required 150 separate provisions in the appendices to the Bill. At the end of that, it was discovered that 50 further aspects needed to be provided for in additional statutory form. If that is an insight into the way in which these matters are to be handled, that really frightens me.

I do not for a moment suggest that the questions addressed by the White Paper, the Green Paper and the Statement are not hugely important.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, perhaps the noble and learned Lord, Lord Howe, would like to put a question to the Minister.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, I am bound by convention to comply with what the noble Baroness says. Does not the Minister—and indeed the Government—realise that this overambitious agenda is likely to lead us into ill-considered and ill-thought-out conclusions on a range of matters which deserve immensely detailed and careful consideration? Does he not agree that the agenda taken here exceeds in huge proportion the modest items which President Giscard d'Estaing had to address in drawing up the treaty of Lisbon? That was child's play. Does he not agree that this is infinitely more ambitious and therefore infinitely more dangerous?

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 ambitious and I do not underestimate the importance of conventions and unwritten law. The noble and learned Lord is right that the development of a protocol to be laid before Parliament on the relationship between the Attorney-General and the prosecution authorities will require very careful drafting. I am sure that I can rely on my noble and learned friend to ensure that that is undertaken very carefully indeed.

However, I would also say to the noble and learned Lord that our constitutional arrangements are not set in stone for ever and it is important that they should be developed and renewed as this country develops and renews itself. The questions that that raises about how power can be made accountable are important at the moment as is the need to ensure that we uphold both the rights and responsibilities of citizens. However, I agree with the noble and learned Lord that this needs to be done in a careful and considered way. The establishment of a joint Select Committee and the publication of a draft Bill and pre-legislative scrutiny is surely a sensible and careful approach.

I am well aware of the noble and learned Lord's views about House of Lords reform. The cross-party group has been established in the context of the vote in the other place for an 80 per cent or 100 per cent elected House. We know from our past history that unless there is political consensus, it is very unlikely that any progress will be made—hence the membership of the cross-party working group.

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

My Lords, I welcome the Government's announcement on the repeal of those SOCPA clauses clamping down on protests around Parliament. However, I should like to add that it is slightly unfair of the noble Lord, Lord Kingsland, to claim that the Conservative Benches fought vigorously against them. That tribute has to go to the activists out there with their lone demonstrations—particularly on Wednesdays—showing that the legislation was unreasonable, unworkable and unworthy of this country.

Before I get to my main question, perhaps I may ask the Minister about the people who since 2005 have been given a criminal record for a crime as minor as reading out in front of the Cenotaph the names of those who have lost their lives. What about those whose prosecutions are pending? I come to my main question to the Minister. Are there any examples pre-2005 of access to Parliament being seriously disrupted that the sessional orders did not cope with? It is our understanding that the legislation was introduced to deal with issues of terrorism and not with access to Parliament, the argument which has subsequently been developed.

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, on the substantive question that the noble Baroness raises on sessional orders, there has clearly been a lot of concern about whether some provisions of the SOCPA are necessary and whether they are an inhibitor to legitimate protests and demonstrations outside Parliament. However, there is also concern that if those provisions are simply repealed and problems arise in the future with regard to open and free access to Parliament and issues around noise there will not be sufficient powers to deal with those problems sensibly and effectively. We need to look at sessional orders in relation to the past experience of such orders. We have said that we will look to Parliament to give further advice on those matters and I am happy to take into account the noble Baroness's comments on that.

Photo of Baroness D'Souza Baroness D'Souza Convenor of the Crossbench Peers

My Lords, I should be grateful if the Minister could say what he means by consensus in the context of the cross-party group on House of Lords reform.

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 consensus that I talk about is consensus between the political parties on the basis of the votes in the other place. Those votes were for two options: an 80 per cent or a 100 per cent elected House. That is the consensus that we seek. The Government have said that they aim to publish the White Paper, as I have already said, before the Summer Recess. Clearly, it is a government White Paper, but we hope that we shall have as much consensus as possible among the other political parties leading on to the next election, to manifesto commitments and, I hope, to legislation. We seek political consensus.

Photo of Lord Grocott Lord Grocott Labour

My Lords, I welcome my noble friend's characteristically clear exposition of the relationship between the two Houses on war powers and treaties and his view, quite rightly, that in these areas—particularly war powers—the primacy of the Commons should be unarguable, if only for the practical reason that it would be a very bizarre constitution that provided for one House to agree to war powers and the other House to disagree. That is not the kind of subject that can be resolved by means of ping-pong. Can my noble friend assure us that the relationship between the two Houses, the powers of the two Houses and the subject of the Cunningham report will need to be central to any discussion—I hope it is to the all-party discussions that are taking place—and to any future discussions about a fundamental reform of this House?

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 not unaware of my noble friend's strong views on this matter. He is absolutely right that, of course, war powers or international treaties must be subject to deliberation about a relationship between the two Houses were this House to be substantially or 100 per cent elected. However, I say to my noble friend that there is no reason why one cannot have a substantially elected second Chamber which, none the less, enables the primacy of the Commons to be maintained.

Photo of The Bishop of Ripon and Leeds The Bishop of Ripon and Leeds Bishop

My Lords, I welcome the comments in the Statement about the senior posts within the Church of England. Will the Minister reaffirm, in the context of the comment on no change to establishment, both the importance of the responsibility of the Church to the nation expressed partly, but by no means wholly, in membership of this House and the importance of some greater independence for the Church of England in making those recommendations to the Crown for senior appointments? There is still a good deal of work to be done with the General Synod in putting together those two important requirements.

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, the Government would very much welcome further discussion with the General Synod on the practical details of the new appointments procedures. I repeat what I said in the Statement. The Government remain committed to the establishment of the Church of England and greatly value the role played by the Church of England in our national life. The right reverend Prelate will know that Lords reform depends on whether the 80 per cent or 100 per cent elected option is chosen but, of course, we are ever mindful of the contribution that bishops of the Church of England make to your Lordships' House.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

My Lords, in the context of the intention of Her Majesty's Government to repeal statute law in relation to the protection of Parliament from protests in its environs and precincts, I invite the Minister to study an episode that occurred in the first half of the 19th century. I think it was in the context of the bread riots. A volatile mob had gathered outside the House of Commons and, as Members entered, they were kicked, punched and thrown to the ground. They immediately sought to censure the Speaker, who had ordered a squadron of cavalry to clear the approach to the House. They were furious because they considered that the sovereign rights of Parliament, as the High Court of Parliament, had been trespassed upon. That principle is still entirely valid today. It is not a matter of legislation; it is a matter of the sovereign right of Parliament, in its own right, to protect itself in that way.

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

My Lords, that is a pertinent point. It emphasises the Government's decision to seek the views of Parliament itself on whether work needs to be done, particularly on sessional orders. The noble Lord has expressed an important view.

Photo of Lord Norton of Louth Lord Norton of Louth Conservative

My Lords, as my noble and learned friend Lord Howe has indicated, this is very much a pudding without a theme. Therefore, the disparate measures encompassed in it will need extensive scrutiny by Parliament. Some specific proposals are to be welcomed. I very much agree with the proposal to place a statutory duty on the Lord Chancellor to report on Law Commission recommendations. In the Statement, this is separate from the Constitutional Renewal Bill. If it is to be a statutory requirement, would it not make more sense to include it in the Constitutional Renewal Bill?

On Lords reform, the Minister said that the intention of the cross-party group is to work towards getting the parties to put proposals in their election manifestos. In other words, it is a party aim. As such, the proceedings of the group are not covered by any of the exemptions in the Freedom of Information Act. Can we now see the papers, not least because they seem to have been released to the Financial Times?

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 grateful to the noble Lord for his comments about the Law Commission. We have already heard from the noble and learned Lord, Lord Howe, about the dangers of covering issues in too comprehensive a way. Clearly, we will need to feel our way forward as to how best to take forward Law Commission proposals. The noble Lord did not mention post-legislative scrutiny; he might have done because that was contained within a statement made by the Leader of the other place last week. The proposal that a law be reviewed by the relevant government department, and then by Parliament, three years after it has been passed, is an important one. I suspect we will debate that in due course.

As for Lords reform, the noble Lord will know that there have been some freedom of information requests, which have not found favour with my department. It really is important that the participants in the cross-party talks can talk freely in seeking the agreement that I have already referred to. I urge noble Lords to ignore leaks and speculation, and to be a little more patient. When the White Paper is out, we will have many happy hours debating it.