Queen’s Speech - Debate (3rd Day)

Part of the debate – in the House of Lords at 6:15 pm on 13th May 2021.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General 6:15 pm, 13th May 2021

My Lords, I send my most profound and real congratulations to the noble Baroness, Lady Fraser of Craigmaddie, who delivered a speech which everybody who heard it thought was absolutely first class. It took on serious issues and addressed them brilliantly. I think we all share her view that we should do everything in our power to allow other people to shine, and I strongly welcome the second choreologist into the House of Lords.

I say a special, very personal and admiring welcome to my noble friend Lady Merron. We were in government together. I do not want to shock noble Lords, but in politics there are some people who are not that great and some very good people, who fight the good fight all the time. My noble friend is one of those, who I saw with my own eyes fighting the good fight in government for Lincoln. I know her grandparents would be proud of how well she has done, because she is their granddaughter, but they would also be proud because of the exceptional things that she achieved and will achieve. She is so welcome here.

Before I come to the contents of what the noble and learned Lord said, I shall mention two matters. First, on the House of Lords, I draw attention to my noble friend Lord Grocott, who is in his place. He made the point that we shame ourselves in this House by going on with the by-elections for the hereditaries. We make a profound mistake by thinking that we have to go on with them. The form of legislation adopted in Section 2(4) of the 1999 Act was that the hereditaries would stay and the Procedure Committee would then make arrangements for there to be by-elections. It was not mandatory; the legislation did not say that was the way it had to be done. It is plain what was envisaged at the time.

My noble friend Lord Grocott was not there at the time but I was, as was the noble Lord, Lord Strathclyde, who I am glad to see in his place and who is an accurate describer of the position: he said that the purpose was to be a guarantee of the second stage. I have tragic news for the noble Lord, Lord Strathclyde, and everybody else in the Chamber: the second stage is not coming. How do I know that? We have had six general elections since the 1999 Act and a botched attempt at Lords reform by the coalition Government, which was rejected. It is over.

It is open to us now as a House to say, legally, that we do not need to go on with this anymore, and I strongly urge the House to look at that because I have more bad news for it: the Commons will not agree to the change in hereditary by-elections. It is time for us to do it. The deal that was done allows that to happen once the second stage is not going to happen, which it is not. I am glad to see the noble Lord, Lord True, in his place because he, too, was a witness to the events that occurred at the time.

That is all I want to say about the House of Lords, except that I completely agree with the noble Lord, Lord Wallace of Saltaire, about what a bad loser the noble Lord, Lord Strathclyde, turned out to be. He defeated a Government whenever he was in opposition and then complained when we did it. Keep going, I say to the Cross Benches, in showing the Government what is wrong. That the Government are getting defeated all the time is not a constitutional problem; the problem is the appalling quality of what is coming in the form of legislation. Perhaps the way to avoid defeats is to look at that, rather than at the fact that people are saying no to the Government on a regular basis.

I shall mention one other point, which was made by my noble friend Lady Quin. She said that we need to look again at what form any referendum would take. I do not mean whether or when we should have one but that the terms of referendum, the particular majorities needed, the thresholds required and what triggers them need to be looked at again. I strongly agree with her on that.

I move on to the constitutional issues in the Speech, and, goodness me, I agree with the noble Lord, Lord Wallace of Saltaire. The noble and learned Lord, Lord Stewart, made a most extraordinary speech—it was not a bad speech at all, but a speech of Walter Mitty, living in an alternative universe, where absolutely everything in the garden is rosy. “By the way”, he said in the final two minutes, “this is what we have done on the constitution”. In a skilful advocate’s trick, he said nothing of value, because there is nothing of value on the constitution, except one thing, in this Queen’s Speech. I strongly commend him for spending absolutely no time on the constitution because there is almost nothing there.

Perhaps I may identify what is there. First, there is the repeal of the Fixed-term Parliaments Act. I support that; it is a good thing. If you had to make a judgment about the quality of the Government who produced that Act, you would give them, on the constitution, gamma minus. The big problem, as has been said repeatedly, was that the Act gave effect to a deal to ensure that the Lib Dems would not be cast out to darkness before the end of the five years of that term. The consequences were put best by my noble friend Lord Grocott: the question of the House of Commons retaining confidence in the Government was thrown out of the window as a result of the provision of a formula through which confidence could be lost, and so when it was obvious that confidence had been lost—which it was during the May Government—they did not then resign as they should have done. Instead, they referred to the Fixed-term Parliaments Act, which set out mechanistic standards. It is a thoroughly bad Act.

I strongly agree with my noble friend Lady Taylor of Bolton, whose report published today on the effect of Covid on Parliament I strongly commend. I agree with her that we need to look closely at the terms of the repeal Bill, to ensure not that we cannot go back to what was there before—I think we can, legislatively—but that what happened in the period between 2017 and 2019 does not become in any way a precedent for what constitutes a Government losing the confidence of the House of Commons. Three times the Government’s major piece of legislation or activity was rejected by the Commons by a massive majority. The situation reached was that that did not constitute a loss of confidence in the Government. That completely poleaxed our constitutional system at that point. Nobody should be able to say, after the passage of the new Bill, that that could happen again. You therefore have to scrub the precedential effect of those three votes in the Commons.

It is absolutely obvious that the rebalancing Bill is the revenge on the Supreme Court for its judgments on the Prorogation. The noble Lord, Lord Moylan, asked: whoever agreed democratically to judicial review? Those who agreed to it were the people, because what they get from it is the Executive being held to what Parliament has decided. Some 99% of judicial reviews are the courts saying to the Government, “You haven’t done what Parliament said and, if you want a democratic system in which Parliament passes Acts that are then given effect to, you have to have judicial review”. Otherwise, who is there to ensure that what Parliament wanted is put into effect? That is how it has worked. No one in this House, with the possible exception of the noble Lord, Lord Moylan, and the Front Bench giving effect to what the Government want, would want to reduce Parliament’s views being given effect to. The rebalancing Bill is thoroughly pernicious.

The Government set up the Faulks committee. I was worried that it would do what the Government wanted but, to its great credit, it did not. It said no to any significant restriction of judicial review. So what happened? This Government simply rejected, in reality, the wishes of the Faulks committee because it said that judicial review worked well. And now what is happening? The Government are proposing in this Bill to make it much easier to oust judicial review.

We will end up in a position like the Bill dealing with the 0.7% aid figure: there is a Bill that says it is the duty of government to spend 0.7% of GDP on foreign aid but there is a clause saying that this is not justiciable in the courts at all—although there is a very big question as to whether or not that will work in the courts. Now the Government want to pass a Bill that says, “Henceforth we will promise to do things”, but with a bit of small print saying, “Actually, we will not give effect to them”. The rebalancing Bill is dangerous and should be resisted.

The electoral integrity Bill is Orwellian in the awfulness of its description, as everyone has said. The electoral integrity Bill requires you to produce photographic ID. There was one conviction in 2019, as everyone knows, but in the test, 800 people could not vote because they could not produce photographic ID. It is an absolute outrage. Let us have Ruth Davidson here as quickly as possible to use obscene language to describe how awful that Bill is. It is shaming that the Government are willing to produce a Bill that is plainly intended to rejig the system against Labour. People will not trust the electoral system if they go on behaving like that. It is much more serious than we make it sound, because it indicates that the Government are willing to tamper with the electoral system, as they tried to do in 2011. As someone said, that attempt was scotched in the end because it was a bad Bill. This is another bad Bill.

So what have we got? We have three things: one is the repeal of the Fixed-term Parliaments Act, and the Government get some marks for that; the rebalancing Bill is a thoroughly nasty piece of legislation, designed to punish the judges; and the electoral integrity Bill is laughable in the way that it is described and dangerous as far as the system is concerned.

Everyone in this debate has agreed that the Government should be focusing on devolution and ensuring the continuation of the union. What is there in the Queen’s Speech about that? There are words to the effect of “We wish to preserve the union”. I do not doubt the sincerity of that, but there is nothing in the Queen’s Speech to address that issue beyond that assertion. My noble friends Lady Crawley, Lady Wilcox of Newport, Lord Anderson of Swansea, Lord Elder and Lord Liddle, and my noble and learned friend Lord Morris, rightly identified the danger to the union at the moment. They all said, one way or another, that the Government need seriously to rethink devolution and address the issue, or the union is in danger of being lost.

The three issues that the Speech should have addressed are: first, the union; secondly, making sure that there are proper checks and balances on the Government, by which I mean the courts, the enforcement of the Ministerial Code and the independence of the Civil Service; and, thirdly, something to ensure a proper degree of regional autonomy. Those are the three things that should have been addressed, but there was none of it. The threat to the constitution is serious, but the Government have proposed to do nothing about it.