POLITICS
The Government lost the vote in the Lords because it lost the argument
BRUCE ANDERSON
0 n Monday the House of Lords debat- ed the question of police powers to conduct intrusive surveillance — bugging etc. — in order to catch dangerous criminals. The main point at issue was whether, as with search warrants, judges should have to approve such operations in advance, and the Government suffered two heavy defeats. It lost the argument; it then lost the vote.
The question is more finely balanced than was reflected in their Lordships' delib- erations, and there is also an ironic aspect. The impression has been given that Michael Howard was proposing to give the police additional powers: not so. The police have been carrying out such surveillance for some years now and Mr Howard was merely proposing to put all this on a statu- tory basis; he was also creating additional safeguards against misuse. Their Lordships insisted on going further.
As usual when the Government is badly beaten in the Lords after a big debate, there were broader issues at stake. Many peers are exasperated with the Govern- ment, they do not warm to Mr Howard and they do not trust the police.
The exasperation arises from Dunblane and from war crimes. After Dunblane, the Government asked Lord Cullen to conduct an inquiry and to make recommendations. His report, a model of its kind, succeeded where Scott and Nolan had failed; Lord Cullen drew lucid and cogent conclusions. But his efforts were entirely wasted. Instead of legislating on the basis of Cullen, the Government legislated on the basis of hyste- ria, and the result is a bad Bill which penalis- es large numbers of innocent people.
Some peers were minded to amend the Gun Bill drastically so that it would reflect the Cullen Report, and the Government Whips had to work flat out to persuade them that this was not a battle that the Lords could win. The tabloids would go berserk while the Labour Party would exploit the issue to the utmost, claiming that hereditary peers who spent most of their time massacring small animals now wanted to preserve the right to massacre children. Neither press nor public would listen to reason, and Labour would be given a means of discrediting the House of Lords: abolish the hereditaries to protect your children.
Slowly and reluctantly, those who had been ready to restore Cullen were persuad- ed to back down. But the whole affair did not improve their opinion either of the Government or of the Home Office. That helped to influence Monday's vote.
So did the collapse of the Serafinowicz trial. When the War Crimes Bill was first proposed, the House of Lords threw it out after a debate of the highest quality in which the Bill was eviscerated. But the Govern- ment persisted and used the Parliament Act, which restricts the Lords' powers to a one- year delay. It was shameful for a Tory Gov- ernment to act in that way and the outcome has vindicated the critics. The War Crimes Act not only violated fundamental legal prin- ciples; it caused a great deal of waste, both of money and of police man-hours. There is nothing in that whole wretched experience to encourage any peer to defer to the Govern- ment's legal judgment.
Michael Howard is not to blame for either Dunblane or for War Crimes; I sus- pect that on both issues his private sympa- thies are with the Government's critics. But he is a loyal team player who always shoul- ders his full share of collective responsibili- ty — or in this case, collective liability.
Mr Howard tries hard with the Upper House. He will always see peers who have doubts, and has addressed meetings of Tory peers. But he has not succeeded in endearing himself to their Lordships. Nor has he per- suaded all his officials to take the Lords as seriously as he does. Given the forces ranged against it, the Government would never have found it easy to win on Monday, but a pow- erful speech from the minister in charge would have helped. Lady Blatch did not make such a speech; not for the first time, it appeared that she had not received enough help from her civil servants. As a species, House of Lords ministers have one failing; their courtesy seems to inhibit them from being tough on their officials.
It is said that a junior Lords minister was once dutifully delivering a dull draft. But boredom made him lose concentration, and he read out one sentence more than he should have: 'Sorry that this is not a better speech, Minister, but it will do for the House of Lords.' Even if that story is not apocryphal, it is no longer true. However badly Commons ministers perform, their Whips will deliver the votes. That is not the case in the Lords. That Chamber is full of impossible characters, who actually believe that they should listen to the debate and weigh the arguments before voting. Tory peers generally obey their Whips' summons, in that they turn up when pressed to do so. But if the minister loses the debate, a lot of them will melt away while others who do stay will vote against.
Michael Howard could also have done more to help Emily Blatch. Last week, Lord Alexander of Weedon wrote a power- ful piece in the Times arguing for judicial approval. On Monday, Mr Howard replied, with effective answers to most points, but in too legalistic a fashion. Bob Alexander's article had a philosophical dimension which the Howard text lacked; it was also better written. The average peer would have been impressed by Lord Alexander's ringing defence of the liberty of the subject; he would not have found it easy to slog through the Home Secretary's dense prose. Nor is the average peer prepared to trust the police in the way his forebears did. There are too many stories of little Hit- lerism on the part of senior police officers who ignore burglary while arrogating to themselves the power to conduct random breath tests, which Parliament has never granted them. Nearly every peer can tell stories of persons of impeccable respectability who have been subjected to insulting questions and prolonged harass- ment merely because they wish to renew shotgun licences. There are also peers who will point out that expenditure on the police has doubled since 1979; where are the benefits? They contrast the police with the armed forces, who have suffered cut after cut and still perform magnificently. The police are forever asking for more powers and higher pay; what about some improved performance? On Monday, min- isters tried to reassure the Lords that they could have confidence in the police. A sur- prising number of peers disagree. It was a good debate, and as for the out- come, there will be a compromise which ensures that intrusive surveillance contin- ues to take place. There is no other way of combating the worst criminals and the most serious crimes. There is always a difficult balance to be struck between liberty and order, but even those of us who feel that the claims of order have been neglected in recent years should applaud the House of Lords' willingness to challenge the execu- tive and its agents.
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