Constitution

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.