Lord Falconer – 2016 Speech on the Loyal Address

Below is the text of the speech made by Lord Falconer in the House of Lords on 24 May 2016.

My Lords, I thank the noble Lord, Lord Faulks, for his exposition of what was in the gracious Speech. He is a fine advocate on a sticky wicket. Looking at his profile on the Ministry of Justice’s website, I noticed that he used to work for the literary agents Curtis Brown. I am glad to say that my very good friend Ed Balls has chosen Curtis Brown as the agents to promote his new book, Speaking Out: Lessons in Life and Politics—available in all good bookshops from 16 September. I would be happy to arrange for the noble Lord a signed copy and the opportunity to learn whatever lessons are going. In exchange, I wonder whether he could get me a copy of another book currently being promoted by Curtis Brown—The Churchill Factor, by Boris Johnson.

Moving on from works of fantasy, I turn to the gracious Speech. It seems a long time ago that it was delivered. Hardly was the ink dry on the vellum than the Government were willing to regret the contents of their own gracious Speech by agreeing the TTIP amendment. Historically, as noble Lords will know, the last time that a gracious Speech was amended was in 1924 and the then Tory Government, led by Baldwin, fell.

That doomed gracious Speech has echoes of the speech that we debate today and included the following line:

“You will be asked to develop the … system of dealing with offenders”.—[Official Report, 15/1/1924; col. 8.]

The gracious Speech had a more direct tone in those days. That gracious Speech lasted just six days before being defeated on 21 January 1924. Three weeks later, Ramsay MacDonald, having deposed JR Clynes as the party leader after the general election, then became Prime Minister. I hope that this does not give political plotters on either side any ideas.

I know that noble Lords in this House are sure that the Conservatives are currently entirely focused on the national interest and not on badmouthing each other. One should completely discount the Minister, quoted in today’s Sun, who said:

“How the f*** are they going to put the party back together after all this?”,

or the reports in today’s Daily Mail of a senior Back-Bencher who said:

“People want a date when they know that he”—

I believe that to be a reference to the Prime Minister—

“will be gone. There is real anger”.

I am sure that the Daily Mail has got it completely wrong this morning with its headline: “Knives out for Cameron”. It may well be that we are the only part of the political system that is taking the trouble to analyse this gracious Speech in any detail. I very much look forward to the winding-up speech from the noble Lord, Lord Bridges of Headley. I note from his website that he was the assistant political secretary to Mr John Major from 1994 to 1997, so he is a bit of an expert on blue-tinged civil war. He will know that his then boss between 1994 and 1997, the noble Lord, Lord Hill, the former Leader of this House, chose to leave the country in anticipation of what is happening.

My final point in introduction is that it is so encouraging that the current Lord Chancellor, Mr Michael Gove, has remained above the fray. Take, for example, his claims that the European Court of Justice is undermining the security of the United Kingdom. Those were described by the former Conservative Attorney-General, Mr Dominic Grieve—who turns 60 today, so we wish him a happy birthday—as “unfounded and untenable”, “simply wrong”, and that the Lord Chancellor was,

“labouring under a very serious misunderstanding”,

of the way the European Union worked. Or take the Lord Chancellor’s claim that up to 5 million new immigrants would arrive in the European Union from Turkey and four other alleged new joiners by 2030. This was based upon the proposition that Turkey would have joined the European Union by 2020—a view to which nobody, apart from the Lord Chancellor and other committed Brexiteers, appears to subscribe.

I turn to the gracious Speech.

Noble Lords

Oh!

Lord Falconer of Thoroton

I knew that noble Lords would be pleased.

First, there was the reference to a British Bill of Rights, which has now featured in the gracious Speech for two years in a row, and in almost identical terms. The Human Rights Act 1998 has effected a fundamental change in the relationship between the overmighty state and its citizens. The effect of the incorporation of the convention into our domestic law has been to force Governments and state organisations to think about the citizen in a different way. Examples of this are legion. The second Hillsborough inquests would not have taken place without the Human Rights Act; the Government’s attempts to introduce oppressive security laws after 9/11 were struck down in the Belmarsh cases because of the Human Rights Act; and the decision of a local authority that tried to separate a couple who had been married for 60 years into separate care homes was struck down as contrary to their basic human rights.

There can be no going back on the rebalancing of the relationship between citizen and state. The Tories have run a campaign against the Human Rights Act since it was introduced. They have found powerful allies in elements of the media who are happy for there to be human rights—but only for those people they like. If as a nation we are serious about human rights, there must be human rights for all, not just for those that the Executive wish to bestow them on or for those of whom the Daily Mail approves.

The Tories came out of the general election in 2015 suggesting that they could leave the European Convention on Human Rights if that is what it took to reform the Human Rights Act. The Prime Minister appears to have retreated from that position, as evidenced by the briefing around this gracious Speech. Not so the Home Secretary, who gave a speech very recently saying that we should withdraw from the convention for the express purpose of reducing some people’s human rights.

As for the Lord Chancellor, who knows? The noble Lord, Lord Faulks, was careful to give no insight into his thinking. The Lord Chancellor’s evidence to the European Union Justice Sub-Committee of this House led it to say:

“The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary”.

So I invite the noble Lord, Lord Bridges of Headley, to give this House some clue—not in detail and not breaking any confidences—about what is proposed.

It is a very strange concept: a British Bill of Rights that would be likely to be refused legislative consent by the Scottish Parliament, to be opposed by the Welsh Assembly and would frustrate and complicate the Good Friday agreement. It may be that those rights would remain unchanged; I do not know and the noble Lord, Lord Faulks, has not told us. It may be that the Government will say that the United Kingdom courts should be supreme in determining what the convention means in UK law. Of course, that is what the Human Rights Act already says. It may be that the so-called British Bill of Rights will declare the supremacy of the UK Parliament—but of course that is already the position under the Human Rights Act, as the prisoner voting rights issue demonstrates.

We so damage ourselves as a country by the inability of our Government to accept human rights in a constitutional settlement that works. It goes without saying that the Lord Chancellor should be the champion of human rights within the Government. A commitment to the rule of law carries with it a commitment to defend people’s basic rights. It is a fundamental weakness in the Government that the champion of the law will not be straight in his defence of its most basic rights. My plea is that the Lord Chancellor and the Government make it clear that they accept that the rights that Winston Churchill insisted be agreed by Europe after the Second World War are now beyond argument both in their terms and in the fact that they will be enforced by our courts in this country. We on this side of the House stand by the Human Rights Act 1998 and we implore the Government to do the same.

The prison and courts reform Bill contains many measures that we welcome. We welcome proposals to give prison governors more autonomy and to increase the focus on rehabilitation and prisoner education. I congratulate Dame Sally Coates for the impressive work she has done as part of her review into prisoner education and I welcome the Lord Chancellor’s commitment last week to review the plight of prisoners serving IPP sentences. But the prison reforms, billed as the centrepiece of the gracious Speech, have no prospect of success unless the fundamental crisis in the prison system is addressed.

First, there is chronic understaffing in our prisons. Secondly, there is chronic overcrowding. Thirdly, there is a chronic rise in violence and self-harm, with 7,000 fewer officers and a prison population which has risen by nearly 3,000 since 2010. There have been six murders and 100 suicides in prisons across England and Wales in the past 12 months—the highest levels seen for at least 25 years. Assaults on staff are up by 36% from the previous year, and overcrowding in prisons is forcing inmates to double or even treble up in cells. I worry, as do many informed observers, that we are on a road which led 30 years ago to the Strangeways riots. I look forward to the speech later of the noble and learned Lord, Lord Woolf, who issued a seminal report after those riots.

The Prime Minister lost his nerve the last time a Justice Secretary tried to reform our prisons and we ended up with Chris Grayling as a result. Until we tackle those issues and see a reduction in the prison population, these reforms are tinkering while Rome burns. I welcome the announcement today of an extra £10 million to spend on safety in prisons. The extra £10 million is to be made available,

“to prison governors for extra prison staff; more training, including on suicide awareness; additional equipment, including body cameras and CCTV; and on additional drug testing, including for legal highs”.

The announcement was no doubt timed to coincide with today’s debates in your Lordships’ House and the other place on prison reform. In the face of the scale of the prison crisis, the £10 million looks risibly small.

If the Lord Chancellor is serious about prison reform, the first step he must take is to reduce the prison population—dealing with IPP prisoners as a matter of urgency. He can take two further steps: first, reduce the number of prisoners who are remanded in custody and then do not get custodial sentences; and, secondly, reduce the length of sentences for non-violent and non-sexual offenders. Not taking these steps makes me worried that prison reform—the centrepiece of the gracious Speech—is not serious but rather an eye-catching initiative designed to distract attention from the troubles of this Government.

The Lord Chancellor speaks of his personal commitment to the issue of prison reform. He gave a detailed interview to the House magazine on 13 May of this year, which stretched over five pages—I have to say that one page was a very large photograph of the Lord Chancellor—but he did not mention the question of prison reform once.

I turn now to court reform, and welcome the commitment to it. We should not underestimate the crisis in our courts. Lord Thomas, the Lord Chief Justice, wrote in January this year:

“Our system of justice has become unaffordable to most”.

He is right. What is more, this Government and the coalition Government before them presided over the decimation of our justice system. In 2009-10 more than 470,000 people received advice or assistance on social welfare issues. By 2013-14, the year after the Government’s reforms to legal aid came into force, that number had fallen to fewer than 53,000—a drop of nearly 90%.

The Briggs report on the civil justice system puts it as follows:

“The single, most pervasive and intractable weakness of our civil courts is that they simply do not provide reasonable access to justice for any but the most wealthy individuals, for that tiny minority still in receipt of Legal Aid … In short, most ordinary people and small businesses struggle to benefit from the strengths of our civil justice system … The civil courts are, by their procedure, their culture and the complexity of the law … places designed by lawyers for use by lawyers”.

This is the crisis with which we need to deal. Access to justice depends on a level playing field. The cost of going to court needs to be reduced and the availability of legal aid needs to be increased. It must be wrong that abandoned spouses, whatever their means, cannot get legal aid to sort out their financial position or continued relationships with children unless they can meet stringent tests to prove that they are victims of domestic violence. The whole issue of legal aid needs to be properly reviewed. That is why my noble friend Lord Bach and his legal aid commission are asking hard questions about how to address these problems, including how technological change can be seen as a benefit to be grasped rather than something to be afraid of.

I am surprised by the reappearance of an extremism Bill in the gracious Speech. The key issue there will be the definition of extremism. The Government must be very careful. We welcome the criminal finances Bill—better late than never. The Wales Bill is important. We need carefully to scrutinise the detail to determine whether it does propose the long-lasting settlement that we all want to see. Labour, as the party which established the Welsh Assembly, welcomes the devolution of further powers. That is why we opposed the disastrous draft Bill that was before us last year. The First Minister—I am glad to see him back in that role—was right to say that that process had been, “an avoidable mess” and that the Government,

“need to get into the habit of treating Wales and the National Assembly for Wales with proper respect”.

The Strathclyde proposals have all the hallmarks of the Government’s approach to human rights: “We say we like them but if they cause any difficulty we then try to take them away”.

This is a gracious Speech overwhelmed by the sound of blue-on-blue gunfire, with the Lord Chancellor right in the thick of it. At a time when our prisons and our courts are in crisis and there is real suffering as a result, he is on a front line fighting a different war. I will give him, as will all on this side, full support for genuine and properly thought through proposals to reform our prisons and our courts. My goodness, we really need such proposals. Unfortunately, the proposals in the gracious Speech do not meet the hurdles either of genuineness or of being properly thought through. We do not know whether the Lord Chancellor will ever return from his current war—but if he does, I urge him to lay off human rights and devote his very considerable energies to the progressive reform that is so desperately needed.