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My Lords, this is a fantasy gracious Speech, because it comes from a Government who do not have a majority to carry out their programme and because there will be an early general election and another gracious Speech, with a Government who may look very different from this one. As Liberal Democrats, we are certainly looking forward to that election, which would have happened already had we not had a Prime Minister who was willing to use the Prorogation as a space free of Parliament so that he could go ahead with a no-deal or bad-deal Brexit without scrutiny or challenge.
I turn first to the criminal justice section of the Speech, which reads as if a good draft prepared by David Gauke, the former Justice Secretary, has been chopped and changed by the Prime Minister and his political advisers so that the good intentions—such as rehabilitation and multiagency co-operation to combat serious violence—remain in, but the resources are mostly diverted away from this work in order to keep many more people in prison for longer. Promising to do this is seen by some—I think wrongly—to be a vote-winner.
The sentencing provisions in both the sentencing Bill and the foreign-national offenders Bill, which will have wider inflationary effects on sentencing, will demand massive resources that could be much more effectively used in tackling the causes of crime and reoffending. What is the point of spending a lot more money than we already spend to feed, clothe, house and guard returning foreign offenders? We could have used that money more efficiently to prevent them returning in the first place, or more efficiently and quickly to return those we now identify—or, in many cases, fail to identify.
Prison is a very expensive resource. We need it to safeguard our citizens from dangerous, persistent and serious offenders while we attempt to turn them away from crime, but every unnecessary or excessive use of expensive custody diverts resources from crime prevention and contributes to the inability of overcrowded and understaffed prisons to carry out essential rehabilitation.
There is a phrase in the Queen’s Speech, quoted by the noble and learned Lord, Lord Hope:
“New sentencing laws will see that the most serious offenders spend longer in custody to reflect better the severity of their crimes”.
Using expensive custody as the sole barometer or signal of the seriousness or severity of a crime leads to ineffective policy. We must develop more cost-effective non-custodial sentences, or parts of sentences, which are seriously challenging to offenders and a more effective response to the seriousness of the crime than merely adding massively to the cost of the prison system.
The serious violence Bill has ambitions with which I entirely agree. However, I cannot think of anything that cannot be done without it; it seems to me an unnecessary Bill. On the other hand, the Bill dealing with the online procedures of the courts and tribunals is much needed, and has now been lost twice due to Prorogation or Dissolution, but did not appear at all in the gracious Speech.
I turn now to our constitution, on which the noble and learned Lord, Lord Judge, gave such stimulating thoughts. Ours is not an entirely unwritten constitution—some of it is written—but much of it is dependent on conventions and assumptions about how political leaders will behave. This is explained by our colleague the noble Lord, Lord Hennessy, as the “good chap” theory of government. These behavioural issues are particularly relevant to safeguarding the monarchy and promoting the rule of law. These presumptions have been tested much more severely than before during recent events.
When Her Majesty addressed both Houses, fresh in her memory will have been the Prime Minister’s advice, unanimously overruled by the Supreme Court, that Parliament should be prorogued for five weeks. It is certainly fixed in our minds, not least because it was followed by the public questioning by Ministers of the independence of the judiciary. These included the Prime Minister himself, who said in an interview in the Daily Telegraph:
“If judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability. The lessons of America are relevant”.
Those lessons are relevant, but in an entirely negative sense. Trying to identify the political opinions of judges and choose them accordingly would be extremely bad for our country.
I have no doubt at all that the Lord Chancellor and the Advocate-General for Scotland, who opened today’s debate, are resolute in their personal commitment to judicial independence. But I am not so confident of the Government as a whole, still less of their political advisers. We must never go down the road of political appointments to the judiciary, or of confirmation hearings designed to test a judge’s past and present political and social opinions. We appoint judges on the basis of their ability to set aside their personal opinions and use their knowledge and intellectual ability to interpret and define the law in accordance with the statutes that this Parliament has passed and the inheritance of common law.
We will face further constitutional issues with the withdrawal agreement Bill. There were repeated requests from members of the Constitution Committee to have advanced sight of the main clauses of the Bill, so that we could examine its structure and the mechanisms it uses. Clearly, any draft we saw would subsequently be affected by the changes made to the withdrawal agreement by the current Prime Minister, but it was necessary, or would have been better, for us to have had advance sight of some of it. It is likely to involve a massive expansion of the power of Ministers to act independently of Parliament. Will those powers be confined as much as possible? Will they be strictly time limited? How adequate will be the opportunities for parliamentary consideration of the orders made under the powers? This House, in a matter of a few months, has examined 500 Brexit-related orders. How are we going to manage that with the consequences of the withdrawal agreement Bill? Will this House be able to do the same if huge gaps in our law open up as a result of Brexit and need to be filled urgently? Henry VIII will be stalking our corridors, day and night.
Possibly as soon as next week, the focus and the Bill will shift from Commons to Lords. This House may be under extremely severe pressure to wave through unamended a constitutionally significant transfer of legislative power to the Executive.