§ Lord Falconer of Thorotonrose to move, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do not insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.
The noble and learned Lord said: My Lords, Motion A covers Lords Amendments Nos. 1, 8, 12, 13, 15, 17, 22, 28 and 37. The Marshalled List reveals the 1020 position to be exactly as it was the previous time we considered these matters. The Liberal Democrats and the Conservatives propose nothing except what has been proposed by the House before. Therefore, if the House supports that approach, no progress whatever is being made on the issues.
We know that the three issues are in essence: burden of proof; whether there should be a committee of Privy Councillors or an independent reviewer; and whether there should be a sunrise clause—
§ Lord Falconer of ThorotonSunset clause, my Lords. It will soon be sunrise!
We all know that the purpose and role of the House is to scrutinise legislation; not to block it. On the three issues that I have identified the Liberal Democrats and the Conservatives in this House will not engage. On a significant number of major issues in relation to the Bill the Government have listened and proposed substantial changes in another place. I went through the examples on the previous occasion. Perhaps as many as 80 per cent of this House's requests have been met.
But now we are in a different situation. In the eight years that I have been in this House I have never seen a situation where a Bill of this importance was blocked by this House on the three issues that I have identified. What has happened is that the House believes, despite the clearest possible message from the Commons, that the view this House has expressed on the three issues must be complied with.
It goes further than that. Unless agreement is reached by the Commons to those three issues, this House is saying that we will block a piece of legislation, the urgency of which is apparent to everyone and has been accepted by the Commons; and the content of which significantly affects the national interest. This House may be right; it may be wrong, but there is absolutely no doubt that when there is such a disagreement this House will give way to the Commons. It is a view that has informed the Liberal Democrats always. It is a view that has informed the approach of the Conservatives always. I am quite unable to understand why there has suddenly been a change in the approach of this House to issues such as this.
The reason why we give way to the Commons is that the Commons are the democratically elected Chamber; unlike this place, every single Member of the Commons is accountable to their constituency for what they are doing about national security. However little we like it, ultimately we have to give way to the Commons. Something is happening that is unusual and different about this Bill. I respectfully ask the House that the time has come to give way and accept the view of the House of Commons. I beg to move.
Moved, That this House do not insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. I; do not insist on its Amendments Nos. 37Q to 37T in lieu of 1021 Lords Amendment No. 8 to which the Commons have disagreed; do not insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do agree with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do not insist on its disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do agree with the Commons in their Amendment No. 37V in lieu.—(Lord Falconer of Thoroton.)
§ Lord Goodhartrose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments Nos. 1A and 1B to Lords Amendment No. 1; do insist on its Amendments Nos. 37Q to 37T in lieu of Lords Amendment No. 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments Nos. 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments Nos. 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments Nos. 17H to 17M to the words restored to the Bill by the Commons insistence on their disagreement to Lords Amendment No. 17; and do disagree with the Commons in their Amendment No. 37V in lieu.
The noble Lord said: My Lords, the noble and learned Lord the Lord Chancellor has said that the Government have given us 80 per cent of what we asked for; the figure I would suggest would be more like 8 per cent. I have never in my experience now for some years in your Lordships' House found ourselves debating at five o'clock in the morning a ping-pong which has been thrown back at us at three o'clock in the morning by the House of Commons. This is taking place in front of full Benches at five o'clock in the morning. There is something quite extraordinary about that. I believe that it is because this is seen by those of us on these Benches and on the Conservative Benches as a constitutional issue of great importance.
The noble and learned Lord the Lord Chancellor said there were three issues involved here: the burden of proof, the committee of Privy Counsellors and the sunset clause. Let me remind him that there is another equally or perhaps even more important issue—that judges and not the Home Secretary should make control orders. We accept, as we have always said, that control orders are necessary at least for the time being and that we will assist as we can in achieving a control order system that is fair and just and effective. But it is surely a constitutional issue of the utmost importance that decisions which are restrictive of the liberty of the individual should he taken by the judiciary on the application of the Home Secretary and not by the Home Secretary. To allow executive decisions to lead to infringements of liberty is the beginning of a downward path which leads where we dare not think.
1022 We believe that this is absolutely essential. That is why it is our duty as we see it to stand up for what we believe is an important constitutional issue. At the other end of this Palace we have a House where a party that received 40 per cent of the vote at the last general election has 60 per cent of the seats.
§ Lord GoodhartThat is true, my Lords. If you look at it now, it is the party membership in this House that more accurately represents the votes cast at the last general election than does the House of Commons.
It is, we believe, our duty to stand up for constitutional rights and civil liberties. If this Bill is to fall, it will be the Government who will be responsible. We are not seeking to block legislation. There is an acceptable compromise here, but the Government are refusing to accept it. So if at the end of the day—and we can see that there may be more of these ping-pongs to come—the Government refuse to do what they should to accept the amendments that we have put forward, we believe that it will be the Government who will be responsible and the Government who will pay the price. I beg to move.
Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its disagreement with the Commons in their Amendments lA and 1B to Lords Amendment 1; do insist on its Amendments 37Q to 37T in lieu of Lords Amendment 8 to which the Commons have insisted on their disagreement; do insist on its insistence on Lords Amendments 12, 13, 15, 17, 22, 28 and 37 in respect of which the Commons have insisted on their disagreement and do insist on their disagreement with the Commons in their Amendments 37A to 37C and 37E to 370 in lieu of those Lords Amendments; do insist on their disagreement with the Commons in their Amendments 17H to 17M to the words restored to the bill by the Commons insistence on their disagreement to Lords Amendment 17; and do disagree with the Commons in their Amendment 37V in lieu.—(Lord Goodhart.)
§ Lord RichardMy Lords, I never thought that I would hear the party of Lloyd George get up in the House of Lords and claim that this House was more democratic and more representative than the one that is elected down there at regular intervals and which has been returned by the most enormous majority.
The noble Lord, Lord Goodhart, has turned this debate not into a discussion on the merits of the Bill, but into a major constitutional issue of whether this House should prevail or that House should prevail. With great respect, he arrogates to himself the most astonishing position in saying, "We are right. and because we are right we are entitled to insist. Despite the views that have been expressed down the Corridor, we are entitled to insist that our views should prevail". That is just wrong. There are people sitting on those Benches over there, many of whom have been in government and many of whom were Ministers. They know that when they were Ministers they would never 1023 have accepted the proposition coming from the Liberal Democrats. There is a distinction here between the Conservative Party and the Liberal Democrat Party. At least many on the Conservative Benches have been in government and know what government is like. They know what the relations between the two Houses must be. I see some on the Liberal Democrat Benches who know about it who ought to be ashamed of themselves, because they know far better about how government works than they are displaying this evening.
If we wish to have a major constitutional eruption, we should go on doing what we have been doing. It seems to me that the time has now come. We have asked the House of Commons to think again; it has thought again and it does not agree with us. We sent it back; and asked it to think again yet again. It did think yet again; but it did not agree with us. In those circumstances, how on earth can we in this House—which is unrepresentative, undemocratic, nominated, or in some cases hereditary—possibly maintain that it is us who are right and the House of Commons which must be wrong? The time has come for us to submit. People over there who have been in government know that it is the time. With respect to the Liberal Democrat Party, it should stop playing games.
§ Lord Maclennan of RogartMy Lords, there are two constitutional issues, and the two speakers on the Government Benches have failed to deal with the first. It may he true that this House is not democratic, and few would deny it, but that it is representative is also true.
The issue that we face and which has kept us here, and which may keep us here for considerably longer, is that the people of this country have no desire to see absolute power entrusted to the Prime Minister by a quiescent Parliament. It is well known, and indeed it is obvious in everything that he has said, that the Prime Minister brooks no opposition. He has come to this point as a result of his overweening parliamentary majority.
It has been, as previous Conservative Ministers have said, a supreme example of the unwisdom and misfortune of such a huge parliamentary majority in the House of Commons. This House has a duty to speak for Parliament. It has no right to duck that because it is being browbeaten by Ministers of the Crown, or former Ministers of the Crown, in support. That way lies the disruption and the threat to our liberties. If this Government were to come forward and propose to us, and persuade their supporters in the House of Commons, that in the use of torture in our own gaols lay the safety of our people, would this House accept it? I suggest that it would not.
5.15 a.m.
The measures before us tonight may not be so abasing of our standards, but they bear within them the threat of the corruption of our legal system and the fundamental 1024 protection of the freedoms of our people. That is why we shall persist as long as we are constitutionally capable of doing so.
§ Lord CobboldMy Lords, as a humble Back-Bencher from the Cross Benches who has listened to the debate in both this House and looking down from the Gallery in the other, I am amazed that there is still such a political battle on issues on which we all agree. The only issue that could solve the problem is the sunset clause. Whatever the faults, benefits or good qualities of the legislation, all the sunset clause asks is the chance to have a look at it again in a year's time. Surely we can agree among grown-up people at this time of night that that is sensible.
§ Lord KingslandMy Lords, on the substance of this matter, we are in complete harmony with the Liberal Democrats. Without a balance-of-probabilities test, many innocent people will be incarcerated. Without a role for the Director of Public Prosecutions, many people will go unprosecuted. Without a judicial process for non-derogating control orders, a politician can continue—as the noble Lord, Lord Goodhart, said—to make control orders on the basis of secret evidence, virtually unsupervised. On all those crucial issues, the Government have moved not an inch.
The noble and learned Lord the Lord Chancellor said that this House had no democratic authority to repudiate the amendments. That argument is a complete sham. The authority that your Lordships have under the Parliament Acts 1911 and 1949 is given to this House by the democratic House. Our powers are completely underpinned by the democratic process; and we would be derelict in our duty if we did not use them in a case where we felt that they ought to be used.
There is of course a principle of parliamentary sovereignty, but there is also in our constitution a matching principle of the rule of law. It is the rale of law that is under threat by this legislation. That is why we continue to protest. The noble and learned Lord the Lord Chancellor says that we have been inflexible, but the opposite is in fact the case. It is the noble and learned Lord who has been inflexible. On the crucial issue of the sunset clause, we have shifted our position from November to March the following year.
§ Lord KingslandMy Lords, that is a big change. I say to the Government, where is yours?
§ Lord Falconer of ThorotonMy Lords, at the request of this House, we introduced judicial scrutiny before almost all the orders were made. The Conservatives and the Liberal Democrats support the concept of control orders, yet they block the Bill.
The noble Lord, Lord Kingsland, is right—this House gets its authority from the Commons. What we do is scrutinise; we ask the Commons to think again. In the past, we have always accepted that once the Commons 1025 has considered and considered our proposals, we then bow to its will. I am sure that that is what Lloyd George would have had in mind.
§ 5.19 a.m.
§ On Question, Whether the said amendment (A1) shall be agreed to?
§ Their Lordships divided: Contents, 153; Not-Contents, 98.
1026| Division No. 9 | |
| CONTENTS | |
| Addington, L. | Higgins, L. |
| Ahmed, L. | Hodgson, of Astley Abbotts, L. |
| Alliance, L. | Hogg, B. |
| Anelay of St Johns, B. | Home, E. |
| Arran, E. | Hooper, B. |
| Ashcroft, L. | Howard of Rising, L. |
| Astor, V. | Howe of Aberavon, L. |
| Astor of Hever, L. | Howe of Idlicote, B. |
| Avebury, L. | Jenkin of Roding, L. |
| Baker of Dorking, L. | Kalms, L. |
| Barker, B. | Kennedy of The Shaws, B. |
| Bell, L. | Kimball, L. |
| Bonham-Carter of Yarnbury, B. | King of Bridgwater, L. |
| Bradshaw, L. | Kingsland, L. |
| Bridgeman, V. | Knigt of Collingtree, B. |
| Brittan of Spennithome, L. | Laing of Dunphail, L. |
| Brooke of Sutton Mandeville, L. | Lamont of Lerwick, L. |
| Brougham and Vaux, L. | Lang of Monkton, L |
| Buscombe, B. | Linklater of Butterstone, B. |
| Byford, B. | Liverpool, E. |
| Carlisle of Bucklow, L. | Livsey of Talgarth, L. |
| Chalker of Wallasey, B. | Lloyd of Berwick, L. |
| Clement-Jones, L. | Lucas, L. |
| Cope of Berkeley, L. | Ludford, B. |
| Crickhowell, L. | Luke, L. |
| Cumberlege, B. | Lyell, L. |
| Denham, L. | McCall of Dulwich, L |
| Dholakia, L. | Maclennan of Rogart, L. |
| Dixon-Smith, L. | McNally, L. |
| Donaldson of Lymington, L. | Maddock, B. |
| Dykes, L. | Maginnis of Drumglass, L |
| Eccles of Moulton, B. | Mancroft, L. |
| Eden of Winton, L. | Marlesford, L. |
| Elles, B. | Mayhew of Twysden, L. |
| Elton, L. | Michie of Gallanach, B |
| Falkland, V. | Miller of Chilthorne Domer, B. |
| Falkner of Margravine, B. | Miller of Hendon, B. |
| Ferrers, E. | Montrose, D. |
| Fookes, B. | Moore of Lower Marsh, L. |
| Forsyth of Drumlean, L. | Morris of Bolton, B. |
| Fowler. L. | Naseby, L. |
| Freeman, L. | Neil of Bladen, L. |
| Freyberg, L. | Neuberger, B. |
| Garden, L. | Newby, L. |
| Gardner of Parkes, B. | Newton, of Braintree, L. |
| Garel-Jones, L. | Northbrook, L. |
| Geddes, L. | Northesk, E. |
| Glenarthur, L. | Northover, B. |
| Glentoran, L. | Norton of Louth, L. |
| Goodhart, L. | Oakeshott, of Seagrove Bay, L. |
| Goschen, V. | O'Cathain, B. |
| Greaves, L. | Onslow, E |
| Hamwee, B. | Park of Monmouth, B. |
| Hanham, B. | Pearson, of Rannoch, L. |
| Harris of Peckham, L. | Peyton of Yeovil, L. |
| Harris of Richmond, B. | Phillips of Sudbury, L. |
| Hayhoe, L. | Razzall, L. |
| Henley, L. | Redesdale, L |
| Rennard, L. | Stewartby, L. |
| Roberts of Llandudno, L. | Stoddart of Swindon, L. |
| Rogan, L. | Strathclyde, L. |
| Roper, L. [Teller] | Taverne, L. |
| Rotherwick, L. | Thomas of Gresford, L. |
| Russell-Johnston, L. | Thomas of Swynnerton, L. |
| Ryder of Wensum, L. | Tope, L. |
| Saatchi, L. | Tordoff, L. |
| Scott of Needham Market, B. | Ullswater, V. |
| Seccombe, B. [Teller] | Vallance of Tummel, L. |
| Selborne, E. | Waddington, L. |
| Selkirk of Douglas, L. | Wakeham, L. |
| Selsdon, L. | Waldegrave of North Hill, L. |
| Sharp of Guildford, B. | Wallace, of Saltaire, L. |
| Shaw of Northstead, L. | Walmsley, B. |
| Shutt of Greetland, L. | Watson, of Richmond, L. |
| Smith of Clifton, L. | Wedderburn of Charlton, L. |
| Sterling of Plaistow, L. | Wilcox, B. |
| Williams, of Crosby, B |
| NOT-CONTENTS | |
| Alli, L. | Hunt of Kings Heath, L. |
| Andrews, B. | Jones, L. |
| Ashton of Upholland, B. | Layard, L. |
| Bach, L. | Leith, L. |
| Bassam of Brighton, L. | Lipsey, L. |
| Bernstein of Craigweil, L. | Listowel, E. |
| Billingham, B. | Lockwood, B. |
| Bragg, L. | McDonagh, B. |
| Brett, L. | Macdonald of Tradeston, L. |
| Brooke of Alverthorpe, L. | McIntosh of Haringey, L. |
| Brookman, L. | McIntosh of Hudnall, B. |
| Campbell-Savours, L. | MacKenzie of Culkein, L |
| Carter, L. | McKenzie of Luton, L. |
| Carter of Coles, L. | Massey of Darwen, B. |
| Clarke of Hampstead, L. | Maxton, L. |
| Corbett of Castle Vale, L. | Mitchell, L |
| Crawley, B. | Morgan of Drefelin, B. |
| Davies of Oldham, L. [Teller] | Morgan of Huyton, B. |
| Dean of Thornton-le-Fylde, B. | Morris of Aberavon, L. |
| Desai, L. | Plant of Highfield, L. |
| Drayson, L. | Ponsonby of Shulbrede, L. |
| Elder, L. | Radice, L. |
| Evans of Temple Guiting, L. | Ramsey of Cartvale, B. |
| Falconer of Thoroton, L. (Lord Chancellor) | Rendell of Babergh, B. |
| Farrington of Ribbleton, B. | Richard, L. |
| Faulkner of Worcester, L. | Rooker, L. |
| Fillcin, L. | Rosser, L. |
| Gale, B. | Rowlands, L. |
| Giddens, L. | Royall of Blaisdon, B |
| Gilbert, L. | Sainsbury of Turville, L. |
| Golding, B. | Sawyer, L. |
| Goldsmith, L. | Scotland, of Asthal, B. |
| Goudie, B. | Sewel, L. |
| Gould of Brookwood, L. | Simon, V. |
| Gould of Potternewton, B. | Stone of Blackheath, L. |
| Graham of Edmonton, L. | Symons of Vernham Dean, B. |
| Greengross, B. | Thomas of Macclesfield, L. |
| Grocott, L. [Teller] | Thornton, B. |
| Harris of Haringey, L. | Tomlinson, L. |
| Hart of Chilton, L. | Triesman, L. |
| Haskel, L. | Truscott, L. |
| Haworth, L. | Tunnicliffe, L. |
| Henig, B. | Turnberg, L. |
| Hollis of Heigham, B. | Wall of New Barnet, B. |
| Howells of St. Davids, B. | Warner, L. |
| Hoyle, L. | Whitaker, B. |
| Hughes of Woodside, L. | Whitty, L. |
| Hunt of Chesterton, L. | Williams of Elvel, L. |
| Winston, L. | |
| Young of Norwood Green, L. |
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ Motion, as amended. agreed to.