The Land of Do-As-You-Please

Well, we seem to be heading for a showdown between the Lord and the Commons on the matter of the Terrorism Bill and the proposed new offence of ‘glorifying’ terrorism, which was removed from the Bill by a Lords amendment only yesterday.

If, by any chance, you’ve been asleep these last few months the general gist of the argument is nicely encapsulated by the comments of Lib Dem Peer, Lord Goodhart, speaking on the Today programme this morning:

Lord Goodhart told BBC Radio 4’s Today programme on Wednesday that the offence of glorification “goes beyond anything that is justified for the protection of national security”.

It was “the worst of both worlds”, as juries would find it difficult to convict and it would be “very restrictive of the media”, he added.

Lord Goodhart said the drafting of the Terror Bill was “confusing” and “turgid”, so much so that it “could apply” to the American War of Independence.

Against this are set the views of Lord Harris who:

said the purpose of the Lords was to “scrutinise” legislation passed by the Commons and that voting down manifesto commitments was “not appropriate”

Well isn’t that [scrutinise the legislation] exactly what the Lords have done? and having scrutinised it, a clear majority have reached the conclusion that it is illiberal, a disproportionate and unnecessary intrusion on the right to free speech and so badly drafted as to be unworkable in practice – but none of that matters to Lord Harris because voting down manifesto commitments is not ‘appropriate’.

What Lord Harris is referring to here is the ‘Salisbury Convention‘ – a constitutional convention put in place in 1945 by the then Tory Leader of the House of Lords, Lord Salisbury, which holds that during the first parliamentary session following a General Election, and sometimes beyond, the Lords should not vote down at second reading, or apply wrecking amendments, to government bills which seek to bring into law commitments in the manifesto upon which the government was elected.

The precise origins of this convention lies in the election of the 1945 Attlee government on a clear mandate to deliver its policies of nationalisation and the creation of the Welfare State – policies that Tory peers were inclined to, and could hypothetically have, opposed, forcing the Commons to invoke the 1911 Parliament Act in order pursue its legislative programme. Peers could not have actually prevented the implementation of either policy, but could have delayed their implementation for two years.

Salisbury, quite rightly, concluded at the time that as both policies were absolutely central to Labour’s manifesto and Labour had been handed a crushing 145 majority in the Commons and fell a mere 0.3% (around 72,000 votes) short of an absolute majority on the ballot – i.e. 50%+1 of all votes cast – it would be inappropriate for peers to openly defy the clear and democratically expressed will of the British people.

It’s this convention that the government is seeking to invoke to justify forcing through this legislation in the face of entirely well founded and reasoned opposition and without any recognition that the situation which gave rise to this convention in 1945 is fundamentally different to that which exists today and in relation to this specific bill.

The differences here are so obvious that you would have to be either blind or stupid [or a government minister] not to see them.

The Attlee government was elected on a landslide, both in terms of Commons majority and votes cast.

This government has a Commons majority [of 66] true but this came on the back of a far from clear victory – only 35% of the total votes cast amounting to a mere 21% of the total electorate voted Labour. Even as a member of the Labour Party I have to concede that that is far from being a clear mandate.

The policies that motivated Salisbury’s statement were absolutely central to the 1945 Labour manifesto – which you can read in full here – in the context of this debate, the list of some of the section headings from this manifesto is particularly instructive:

Jobs For All
Industry in the Service of the Nation
Agriculture and the People’s Food
Houses and the Building Programme
Health of the Nation and its Children
Social Insurance against the Rainy Day

One could hardly be mistaken, from those headings alone, as to the nature of Labour’s 1945 programme.

Against this, the government’s entire policy position on international terrorism in the 2005 manifesto is stated in a mere four paragraphs as the final item in a 16 page section entitled “Crime and Security: Safe communities, secure borders” in the middle of a 112 page manifesto that few but most committed activists – and the press, of course, will have bothered to read in full.

Somehow, the idea that badly drafted proposals for unworkable new offence should be accorded the same constitutional weight as the Attlee government’s entire programme for the creation of the welfare state, doesn’t quite wash. Nor, to my mind, does it fit the exact words by which Lord Salisbury stated his convention, during the House of Lords debate of the 1945 King’s Speech:

“it would be constitutionally wrong when the country has expressed its view, for this House to oppose proposals which have been definitely put before the electorate”

Yes, that is the actual Salisbury Convention, as first stated in the House of Lords – to those not used to the British way of constitutions, it is perfectly possible to create a constitutional convention merely by making a simple statement of principle, which everyone tacitly agrees to accept

Note that Salisbury refers to proposals that have been ‘definitely’ put before the electorate, by which I take him to have been using the term ‘definite’ to mean, ‘clearly defined’ and ‘explicitly precise’, neither of which seems applicable to the wording of the relevant manifesto statement, which reads:

… we will introduce new laws to help catch and convict those involved in helping to plan terrorist activity or who glorify or condone acts of terror

Remember, Lord Goodhart has described the Terrorism Bill as ‘confusing’ and ‘turgid’, the actual Bill which should clearly and precisely define the nature and scope of the new law and the new offence of glorifying terrorism – if the government cannot express itself clearly in drafting legislation, how can it expect to claim that a one manifesto statement has ‘definitely been put before the electorate’…

…and on a point of pedantry to gladden the heart of the Pedant-General in Ordinary, I should point out that the manifesto states that these new laws will relate only to those who ‘glorify or condone acts of terror‘ and not the generality of terrorism, which the Bill also seeks to cover. So again, if were being ‘definite’ here, the proposed framework for this new offence that this Bill creates actually deviates from the express manifesto commitment, taking it outside the confines of the Salisbury Convention.

Not that that is ultimately of much consequence inasmuch as while bleating about the Lords failure to observe the Salisbury Convention, Ministers have seemingly forgotten about an older and far more venerated constitional convention – the supremacy of Parliament, which holds that no Parliament may be absolutely bound by a previous Parliament, a convention that the present government has had no problem using in expanding its use of summary justice contrary to the provisions of the 1689 Bill of Rights but which now gets conveniently forgotten when the Lords make de facto use of that convention to overturn the Salisbury Convention.

I suspect I’ve waffled on sufficiently for you to get the point that I see nothing eiter consitutionally or ethically wrong in the Lords taking a stand on this issue and voting down the proposals to criminalise the ‘glorification’ of terrorism, I will however leave you with one thought.

In addition to the comments of Lord Harris, Home Office Minister Hazel Blears also had this to say:

The government has made a commitment to the electorate to make the glorification of terrorist attacks an offence, and we intend to honour it

That statement is what it is, the point I want to make is that the dictionary definition of the word ‘blear’ – and therefore its plural ‘blears’ – includes both the entirely appropriate:

‘to make (the eyes) sore or watery’

and

make dim and indistinct

as verb uses, while as an adjective it means

tired to the point of exhaustion

Does anyone else think that Hazel’s looking tired lately.