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For Wales to gain a semblance of self-government took 600 years. It took the historic 1944 Education Act; it took Wales-based radio and television, the BBC and ITV in Wales; and it took Prime Minister Harold Wilson's establishment of the Welsh Office, led by the great Secretary of State for Wales, James Griffiths, the then Member for Llanelli. These were the platforms on which the advance to devolved government in Cardiff was secured.
How far should the Wales Assembly go? Is Britain on a de facto road to federalism? Do the Government know that? Do they perceive that? I hope that our Westminster Government are considering the next moves carefully, with some wisdom and over time. They have certainly proposed a sound gracious Speech. As my noble friend the Minister has said, they are a Government seeking a fair and just society.
8.26 pm
Lord Lyell of Markyate: My Lords, I wish to speak briefly on the Bribery Bill. I support it strongly in principle but it raises several problems and it is important that it is properly scrutinised by Parliament. I was a member, along with the noble Lord, Lord Thomas of Gresford, of the Joint Committee that carried out pre-legislative scrutiny between May and July. I congratulate the noble Viscount, Lord Colville of
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It may be said that the draft Bill in different forms has twice been considered by the Law Commission, which has done valuable work, but it is Parliament that is responsible for getting legislation right and which collectively has far more legislative understanding than any external body. One of the things that has been lacking over recent years has been any Minister or law officer who has taken a personal grip on the Bill. I urge the Attorney-General now to do so.
In the few minutes available, I wish to make two points. The first is that the definition of "bribery", which takes up the whole of the first three clauses of the Bill, is unduly complex. In its report, the Law Commission rightly said that 95 per cent of the population-remember, that is more than 11 out of 12 of a jury-know instinctively what is meant by "bribery and corruption". The Director of Public Prosecutions, although he says that he supports the Bill, has written to the Joint Committee confirming that his inquiries show that in the past 15 years the straightforward words of the present legislation have caused no practical problems for prosecutors, and I can say from my personal knowledge, which goes back to 1979, that they caused no problem throughout that period. While overseas is a little different, the challenge with regard to bribery in this country has been not the legislation but the difficulty of getting hold of the necessary evidence and the need for fraud investigation group-that is, the Serious Fraud Office-type skills in presenting it.
My point is that the long definition in the draft Bill is unnecessarily complex and in terms that only an experienced lawyer can disentangle. In defining one of the nastiest non-violent crimes on the statute book, it makes no mention of dishonesty. Its key ingredient is "impropriety", a word that in the Shorter Oxford Dictionary has around a dozen different meanings, only one or two of which approach criminality. "Improper" and "impropriety" are then subdivided in the Bill into a series of subcategories-good faith, impartiality, breach of trust, breach of a relevant expectation-all of which may indeed be criminal provided that dishonesty is present, but otherwise may fall short of criminality. Indeed, some, such as impartiality, may be perfectly proper, or at least within expected norms, such as a supermarket planning application that offers a more generous planning gain than its competitor.
The second point concerns the effect of a conviction on an international business and the case for or against prosecutorial guidance. We received some evidence on that in committee. The harsh reality is that, quite apart from the proper desire to stamp out corruption, one of the major driving forces behind the real changes introduced by the Bill concerns international competition and the immensely competitive world of international trade, including the international arms trade in which we cannot escape the fact that the UK, the USA, Germany, France and others are very big players. Other major
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Pressure for this Bill comes rightly from those, and I am one of them, who deplore and wish to stamp out the huge amount of bribery that is alleged to have gone on in those fields. Pressure also comes from the USA, which led the world with its unfair commercial practices Act 1977, and from others, who can see us as trailing behind. But the OECD resolution to which we are signatories and our obligations under EU law that incorporate that resolution into our own law-it was sadly abused by Tony Blair when he intervened in the BAE Systems case-provide that any individual or business that is convicted of the bribery is thenceforward forbidden even to bid for such contracts, even if the conviction is the result of its voluntary self-accusation, which is encouraged.
The USA and Germany have both devised schemes to avoid or at least reduce that effect either by so-called pre-contract clearance by prosecutors, as in the USA, or by a system of deferred judgment by the courts, which operates in Germany. How do the Government propose that the United Kingdom should tackle this issue to achieve a level playing field? I look forward to the Minister or the Attorney-General replying on those two issues and ask him or her, if they are not sufficiently briefed immediately, to write to me and to others interested in this Bill setting out the Government's response. Those are only two of a number of important issues raised by the Bill. I hope to try to help in their resolution at Second Reading, in Committee and at later stages of the Bill.
8.33 pm
Baroness Linklater of Butterstone: My Lords, there is once again reference in the gracious Speech to penal matters, and on this occasion it is in relation to ASBOs and linking them to parenting orders and knife crime. Putting these issues together in isolation from their particular context is characteristic of how penal affairs have been dealt with in the past few years when we have had multifaceted bills which lack an overall cohesion, but include piecemeal responses by the Government to specific issues which have recently hit the headlines, as seems to be the case here, too.
This use of legislation raises worrying questions about the lack of a coherent, consistent vision of what the Government are trying to achieve, which in turn undermines wider confidence and trust in what the Government are doing to make Britain a safer place both now and in the future. That is particularly true of the Government's approach to custody.
Government policyon the use of custody for people found guilty by the courts is very clear: only the most dangerous, violent and prolific offenders from whom we need protection should go to prison, and all the rest should be dealt with by means of community-based disposals. What is actually happening, however, is a contradiction of that policy, with the prison population now at an all-time high of 84,500 people, resulting in unprecedented and unacceptable levels of prison overcrowding, making it impossible for the Prison Service to do the good job for which it was designed.
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Who are these people causing the prisons to burst at the seams? Can they all really be so violent, dangerous and prolific as policy states they should be? Of course not. In 2008, nearly 29,000 people were serving only three months or less, and still more were sent to prison for six or 12 months. These are not dangerous and violent offenders from whom we should be protected, but in large part they reflect the dozens of Bills and thousands of offences which have been created over the life of this Government. This is enormously costly-in 2008, prisons expenditure was £3.8 billion and rising-and does considerable damage not only to society at large but to the thousands of prisoners and their families inappropriately caught up in the custodial net. The social cost is incalculable. Yet, amazingly, over the life of this Government the number of people found guilty by the courts has actually fallen, while the prison population has soared. Quite simply, ever more people are going to prison for less serious offences and for longer.
Meanwhile, what about the other part of the Government's policy; that community-based disposals should be used for the great majority of non-violent, non-dangerous or prolific offenders? The truth is that this excellent, effective policy has been systematically undermined by the Government's own lack of committed, focused or remotely adequate investment, development or support for the providers of these disposals. This includes the probation service, which is the national agency with responsibility for the management of offenders in the community and is now enormously stretched, a great range of very able third sector organisations and the private sector. A great deal of evidence has accumulated that community-based alternatives work better. Not only do they do less damage to society as families are kept together, people's homes are not lost and jobs are retained, they are far cheaper to deliver and, most importantly of all, reoffending rates are significantly lower. This is what really matters as it is the official criterion used to measure the success of any intervention and is an indication of how society is being made safer.
In fact, just under half of all prisoners reoffend. In his opening remarks, the noble Lord, Lord Bach, announced a drop in reoffending-that is true-but failed to put it in the context of a drop from an unacceptable high to a still unacceptable level. This includes up to 60 per cent reoffending by those who serve less than 12 months. Among our youngest, most troubled young children, who we also think fit to incarcerate, the figure is as high as 80 per cent-they just do it again. Yet Rethinking Crime and Punishment, which I chaired for seven years, published a booklet last year describing just some of the pockets of outstanding community-based work going on the length of the country which had won prizes for good practice awarded by the Howard League. The results speak for themselves. They work, with rates of people who do not reoffend as high as 75 per cent and 80 per cent-or rates of 25 per cent or 20 per cent who reoffend. It is heartbreaking to note that this valuable and important part of government policy is not being prioritised, but is undermined in the quality of delivery and in the minds of sentencers by the lack of adequate resources for the Government's own policy.
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In these days of economic downturn, all departments of the Ministry of Justice under NOMS, including the probation service and prisons, have to find savings in their operations amounting to some £171 million. Somehow we expected that. But, at the same time, we did not expect Jack Straw to announce that £1 billion is to be allocated to the new prison building programme. Why £1 billion is not being put into the positive, cost-effective and infinitely less socially damaging part of the Government's policy which actually works, and would in turn make it possible to reduce prison numbers far quicker than it takes to build a new prison, and reduce the need for any building, is utterly baffling. It demonstrates a government policy which is incoherent, inconsistent, incomprehensible and wrong.
Apart from this evidence, the Government naturally want to respond to public pressure and demands. Here again it appears that the Government are getting it wrong, because the evidence of public opinion, through a range of studies, shows that while the public finds it difficult to believe that crime is falling, only 11 per cent think that a greater use of custody would do most to reduce crime. The public is not nearly as retributive or punitive as the Government appear to believe. Instead, the influence of the red-top newspapers has had a greater impact on what the Government believe, with lurid reporting extolling prison as the only real punishment and dismissing alternatives as a soft option. Offending which is not dangerous, violent or prolific is much less likely to recur when offenders have served a sentence in the community. If the Government want to show that they can be tough on crime, they must realise that prison for the majority of offenders is not effective toughness, but rather it is the toughness of sanctions that reduce reoffending that the public want implemented. So far, we have yet to see policies which are consistent or able to deliver just that.
8.43 pm
Lord Harries of Pentregarth: My Lords, as we know, the gracious Speech refers to a draft Bill on reform of the House of Lords, but more experienced political pundits than myself tell me that it has absolutely no chance of getting through. First, this is a draft Bill and there is no chance of an actual Bill getting through in this Session. If the Conservative Party gains power, I am told that it will not bring forward proposals for House of Lords reform until its third term. As we all know, the policy of the Conservative Party in no way reflects the views of Members of the House of Lords, let alone the country. The kind of strong arguments put forward by the noble Lord, Lord Grocott, are widely shared across this House and the country. If the Labour Party remains in power, it will be with only a small majority. It will not use up a huge amount of energy to drive House of Lords reform through this House against the opposition that has previously been shown.
Does that mean that House of Lords reform will be stalled for another 100 years? Does this matter? Many of us believe that the House is working quite well-perhaps better than it has done before. Nevertheless, I wonder whether, like me, noble Lords have one or two worries. First, there is the sheer size of the House of
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Secondly, some noble Lords who were here on Wednesday will remember the remarkable speech by the noble Lord, Lord McNally. He coined a new term, which should be accompanied by gestures, when he said:
"'Pouffe' is what happens when a notable talent joins the Prime Minister's Government ... They appear at the Dispatch Box; we all admire them-and then 'pouffe'. The noble Lord, Lord Jones-'pouffe'. The noble Lord, Lord Carter-'pouffe'".-[Official Report, 18/11/09; col. 15.]
I am all in favour of talent being brought in to the House of Lords, and I am very glad to see the noble Lord, Lord West, because we very much admire his talent and are very glad that he is here. Long may he remain here and long may he remain on the Front Bench. However, the problem, as we know, is that some Ministers are here for a year or two and then suddenly disappear. It poses the question of whether noble Lords should be appointed for life.
Given that we seem to be totally stalled on major reform of the House of Lords, we should return to the Wakeham report. The Royal Commission on the Reform of the House of Lords, chaired so ably by the noble Lord, Lord Wakeham, and on which I had the great privilege of serving, made a number of proposals that could be taken very seriously even now, when radical reform appears to be stalled for a long time.
The first suggestion-I know that this is shocking-is separation of the membership of the second House from the peerage. One proposal of the Wakeham report was that possession of a peerage should no longer be a necessary qualification for membership of the second Chamber, and that new Members should not necessarily be offered a peerage. People could be offered a peerage, but they would not have to be offered one.
The second proposal that I shall draw attention to is in some ways no less radical. It is that membership of the second Chamber should be not for life, but for 15 years. Whether a person comes into the second Chamber by election or appointment, it should be for 15 years and not for life. It was interesting that although the members of the commission, when they started, had totally opposed views about whether the second Chamber should be appointed or elected, all were unanimous about these two proposals-separation from the peerage and appointments not for life but for a long term, say 15 years, with the possibility of renewal under exceptional circumstances.
Although House of Lords reform has been stalled now for 100 years, there have been significant incremental changes over that period, such as the Parliament Act of 1911, the Salisbury convention, the Life Peerages Act 1958, the gradual phasing out of the hereditaries and the creation this year of the Supreme Court. My proposal is simple. Given that radical reform seems to
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8.49 pm
Lord Campbell of Alloway: My Lords, it is a sheer privilege and pleasure to follow the noble and right reverend Lord, who enlivens the House. I agree with everything that he said, albeit that I have been here for 20 years and am 92. I accept totally what he says about 15-year terms, although I am a bit over the limit.
I was going to speak about the separation of powers and how it impacts on and affects the governance of the realm by the introduction of Bills-not only the Bills in the gracious Speech, to which I am not speaking, but other Bills too. The separation of powers involves setting up a constitutional court on the extended jurisdiction of the Supreme Court, which has been spoken about by the noble and learned Lord, Lord Phillips of Worth Matravers. This is in a sense a revival of the spirit of the Pilgrim Fathers and Thomas Paine. It is a new dawn for all Her Majesty's subjects of whatever political persuasion or none, and it could well affect the acknowledged function of your Lordships' House as guardian of the constitution to divert the exercise from amendments to delay a Bill towards an application to the constitutional court for approval of what would have been the substance of such putative amendments. It is entitlement of a totally new dimension.
A constitutional court devises its own procedures to afford the requisite flexibility. It may reform or shield our constitution from political junketing and from the imposition of prime ministerial decrees, which erode, and perhaps debilitate or even destroy, the constitution, as they are made without consultation with either Parliament or the Government. It is a new hope for all those subjects of Her Majesty of whatever political persuasion or none.
I do not suppose that anyone is very interested but I shall try to be short about what I have to say. This is, to my mind, a crucial subject-it concerns the awakening of an entitlement to a better way of governance. A couple of amendments that have been lying around and have been spoken to in your Lordships' House could well qualify for reference to the constitutional court. One is the segregation of the combined appointment of the Lord Chancellor and the Secretary of State for Justice. The other concerns the restoration of the entitlement of the Lord Chancellor, at the conversion of policy into law, to advise the Cabinet and the Secretary of State as to the withdrawal or amendment of a Bill for want of conformity to constitutional principle and the rule of law. Nobody-even here-could say that that is not relevant to the governance of the realm.
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The constitutional court's decisions are not subject to the supranational jurisdiction of the federal Supreme Court as they are concerned with unwritten, ever- evolving constitutions of a constitutional monarchy. They cannot apply to the written constitutions of the EU member states, so we cannot be subservient to the jurisdictions of that court.
There is not much time to deal with what my noble friend Lord Kingsland said about the two issues to which I referred, and which I know the Minister knows. With seven on the clock, I shall just give the reference, which is Official Report, 18 November 2008, cols. 1123-24. Everything that my noble friend said is there. He was a veritable master of the esoteric art of forensic persuasion, and he did it much better than I can at this hour.
If the Lord Chancellor's entitlement, which was slighted into abeyance by the setting up of a combined appointment, were to be restored, first it has not been abrogated by statute; secondly, there would be no need to have any conflict with extant statutory provision; and lastly, by virtue of the statutory retention of the Great Seal-it was the only amendment accepted by the Government of my many amendments to that Bill. It was accepted and maintained the office of the Lord Chancellor that the then Prime Minister sought to abolish in June 2005. I conclude with deference to the Supreme Court, the Constitution Committee of your Lordships' House, which I respectfully suggest would have to make applications to the court, and to my noble friend Lord Kingsland.
8.59 pm
Lord Rennard: My Lords, in 1964, there was a change of Government after the Conservatives had been in power for 13 years. The Labour Party under Harold Wilson had campaigned on the message of change using the slogan "thirteen wasted years". We are now approaching a general election some 13 years after the current Government were elected.
When it comes to constitutional changes, I could not go so far as to suggest that the entire period since 1997 has been wasted. We now have the Scottish Parliament, the Welsh Assembly, the London Mayor and Assembly. All of them, including our Members of the European Parliament, are elected by better means than first past the post. However, on the key constitutional issues of giving voters the power to choose how their MPs are elected and the power to choose Members of your Lordships' House, it is clear that three large majorities in three Parliaments have been wasted over these 13 years. The lack of measures in the gracious Speech to implement real political reform means that many of the high hopes from 1997 have finally been dashed.
In 1996 and early 1997 I served as the joint secretary on a consultative committee established between the Labour Party and the Liberal Democrats to consider the process of implementing constitutional reform in the likely event that the then Conservative Government were defeated. The committee was jointly chaired by my noble friend Lord Maclennan of Rogart and the late and much missed Robin Cook. My opposite number was Pat McFadden, now an MP but then Tony Blair's
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