Second Reading

Part of Crime and Security Bill – in the House of Lords at 6:31 pm on 29th March 2010.

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Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 6:31 pm, 29th March 2010

My Lords, in his opening speech, the Minister dealt at length with fingerprints and the retention of DNA samples, covered by Clauses 1 to 28 of the Bill. He was right to do so because they are clearly matters of great importance. However, I will confine myself to two matters at the other end of the Bill-gang violence and control orders. Before doing so, since this is the very last piece of legislation to come before us during this Parliament, it is tempting to look back a little. That, with the permission of the House, is what I propose to do. Here follows my end-of-term report on the Government, covering the past five years. I promise the House that it will be brief.

Future historians will look back on these past five years and identify two main areas of criticism-the way that the Government have dealt, first, with constitutional reform and, secondly, with the criminal law. I will say very little about the constitution, because we had a full debate on it only last week, in which many remarkable speeches were made. However, I should like to add just one small footnote.

As I listened to that debate, my mind was inevitably taken back five years to the end of the previous Parliament, when we passed the Prevention of Terrorism Act in 2005. It took me back to the announcement, which I am sure we all remember, in a press release from Downing Street, in which it was stated that the office of the Lord Chancellor would be abolished and the Law Lords would be removed from the House of Lords. We were told that there would be consultation on the details of that, but that there would be no consultation on the policy; the policy decisions had already been taken, and that was that. In other words, we were faced with an exercise of executive power at its most presumptuous.

Needless to say, as it turned out, the Government soon came unstuck. They found that it was simply not possible to abolish the office of Lord Chancellor. Instead, the Long Title of the Bill was amended to state that the office would be only modified. But the Lord Chancellor is still with us; he still presides over the Lord Chancellor's Department-exactly in the same way that he always did-except that the department is now called the Ministry of Justice. Indeed, the Lord Chancellor is enjoying something of a renaissance. I refer to the office, rather than to the Lord Chancellor himself. In the recent Constitutional Reform and Governance Bill, I see that he, instead of the Prime Minister, is to take charge of recommending judicial appointments. That is of course exactly what he always used to do. One might even imagine that one day he will return to this House-again I refer to the office rather than the incumbent-and we might find him sitting next to the noble Lords, Lord Mandelson and Lord Adonis. In one dream I thought that the noble Lord, Lord Mandelson, and Mr Jack Straw might even change places-but that was only in a dream.

What I have said about the Lord Chancellor is equally true of the Supreme Court. We have exactly the same people doing exactly the same job. No one suggests that they are any more independent than they ever were, or that the separation of powers-the theoretical idea on which the whole exercise was based-has bought us any tangible benefit. What has been objectionable in all of this has surely been the arrogance, the cavalier attitude, of this Government to constitutional reform. The constitution is not a plaything at the disposal of the Executive. The whole point of a constitution, whether written or unwritten, is that it acts as a brake. The whole point of a constitution is that it should not be changed too easily, and certainly not at the whim of the Prime Minister of the day. In that connection, I should like to quote from the remarkable speech of the right reverend Prelate the Bishop of Durham last week when he said:

"I end by re-emphasising the two basic points. First, any and all constitutional reforms should be undertaken only in the light of a full top-to-bottom constitutional review. Secondly, elected politicians are the last people who ought to be in charge of such a review".-[Hansard, 24/3/10; col. 975.]

That may seem to be paradoxical, but it contains a profound truth.

If we have done harm to the constitution over the past five years, as I believe we have, we have done even more harm to the criminal law. I am not thinking of the obvious things-the fact that we have more people in prison than ever before, or that we have created more new offences than any previous Government-as if these were things of which any Government could be proud. I am thinking of something much more insidious and, in the long run, much more dangerous. We have created a parallel system of criminal justice alongside the existing criminal law, using the civil courts instead of the criminal courts, a point on which the noble Baroness, Lady Hamwee, touched.

The first step is to obtain an injunction in the civil courts. The second step is to punish the defendant for breaching the injunction as if he had committed a criminal offence, which of course he has not. If he had committed a criminal offence, the facts would have had to be subject to the criminal standard of proof, but in applying only for an injunction, all that is necessary to be satisfied is the civil standard of proof-on a balance of probabilities. This confusion of civil and criminal remedies is novel and is a serious misuse of civil process. I am not alone in taking that view. In its as always very helpful briefing paper, Liberty states that this,

"constant blurring of the criminal and civil law is changing the very nature of the system of trial and punishment developed over centuries".

That may seem like an exaggeration, but I doubt whether it is. We will come, in a few moments, to a good example of that in the Bill.

It all started, as these things often do, in a rather a small way, one might think, with the non-molestation orders in domestic proceedings under the 1996 Act. Next came anti-social behaviour orders; then came drinking banning orders in 2006. I confess that if I ever knew about drinking banning orders, I have entirely forgotten them-I do not know whether they have been in any way effective. Thereafter, things became much more serious. We had the serious crime prevention orders in 2008, at the very serious end of the criminal process. Most recently, as has already been mentioned, we have had gang-related violence orders in the Policing and Crime Act 2009.

Why is this approach, which has now obviously become the custom, so wrong? The reason is quite simply this: the criminal law is meant to apply universally, to all alike. The new approach is creating little bits of criminal law which will apply only to the individual who is the subject of the injunction, and for which, if he breaches the injunction, he will go to prison-in the most recent example for up to five years.

It is not just that. It is also that these little bits of criminal law are created not by Parliament but by magistrates and judges, all of whom will be sitting in a civil court and may have very little idea of how what the injunction says relates to the criminal law as a whole. I regard this development-these new little bits of criminal law as I call them-as being wholly inconsistent with what I understand by the rule of law. We should stop the rot before it spreads any further.

I return to gang-related violence which is a very good example of what has been going on. The provisions in the 2009 Act did not apply to under-18s. The reason given by the Minister was very clear. He said that to have extended the 2009 Act to children would have involved,

"a major change in how civil law interacts with minors".-[Official Report, Commons, Policing and Crime Bill Committee, 26/2/09; col. 566.]

That was in 2009, yet here we are in 2010 being asked to accept this major change before the ink is even dry on the 2009 Act without consultation of any kind. If Clauses 34 to 39 become law, a child of 15 could be made subject first to a wide-ranging injunction in a civil court. If he breaches the injunction, he could be made subject to a supervision order for up to six months, with a curfew requirement for eight hours a day and an electronic tag. If he then fails to comply with his supervision order in any respect, he could be sentenced to three months in a young offender institution. These are matters on which the House would, I am sure, have views which it would want to be able to express. The Government could have introduced these provisions relating to under-18s in the 2009 Act. They missed that opportunity, and it would be quite wrong to let them have a second bite at the cherry now.

I come lastly to control orders. When future historians look back on the history of terrorism, they will be impressed with the way we dealt with it in Northern Ireland during the last 30 years of the 20th century. We made a mistake in trying to impose internment, but we soon abandoned that; we realised it would not work. Future historians will be much less impressed by the way we have dealt with international terrorism in the 21st century. We have had a mass of legislation, much of which they will regard as counter-productive. Control orders they will regard simply as an aberration. We all know that whoever wins the election will review control orders: both major parties have promised a review. What conceivable purpose is served by considering an amendment to the 2005 Act now?

The Security Service and the police say that the absence of the power to search is causing them operational difficulties. I am not quite sure what those difficulties are, but in any event they have had to put up with them since July last year, when the Court of Appeal held that searching those subject to control orders was not covered by the 2005 Act and was therefore unlawful. In paragraph 90 of his fifth report, the noble Lord, Lord Carlile, says in a single sentence that we need powers of search. We all owe the noble Lord a very great debt of gratitude for the work he has done in relation to terrorism, but he is not a one-man legislature.

If we allow this bit of the Bill relating to control orders to become law we will be going against the Motion which this House passed only three weeks ago, in which we said that the Government ought long ago to have replaced control orders with something better. It would be quite wrong now, therefore, pragmatically and morally, to add to the agony.