Those who voted against the Bill included two former Lord Chancellors (Lord Irvine of Lairg and Lord Falconer of Thoroton), Baroness Manningham-Buller (former Head of MI5), Lord Woolf (former Lord Chief Justice) and Lord Condon (former Metropolitan Police Commissioner). The Government’s embarrassment was increased by clear dissent within the Labour Party. There were 24 Labour rebels.

The atmosphere in the House was electric. This was democracy in action. For those who argue that the House of Lords is unnecessary, this government defeat shows the vital importance of having a second chamber. Without the House of Lords, Britain would be vulnerable to having ill considered legislation passed.

Yet I believe that our democratic system is a developing process. It needs scrutiny to improve and to be an example for the rest of the world. The Lords’ victory has generated much media coverage, but a slightly disquieting issue lies silent at its centre.

The Government’s senior Independent Reviewer on Terrorism, Lord Carlile is a Liberal Democrat Peer. His support for 42 days was heavily relied upon by the government in favour of the bill. Now the beauty of our democracy is illustrated by the very fact that a Liberal Peer can hold beliefs which run contrary to his party’s views – the Lib Dems opposed the 42 day legislation.

However, as a former judge myself, I am concerned that the Government’s terrorism advisor is an active politician – albeit in the Upper House. I believe that such an important role should be held by an apolitical, impartial Judge or senior lawyer and not by a politician.

With the provisions for detention for 42 days and for inquests in secret having been removed from the Bill, there was little remaining that was greatly contentious.  On some amendments, the minister, Admiral Lord West, was notably accommodating.  In response to one amendment he said ‘I was briefed that it was too difficult to come up with a form of words that captured the differences that the noble Baroness outlines’ but then went on to say ‘However, on reflection, I should like to try again to see whether it is possible to find a form of words that captures that, although as it stands, it is quite clear..’   At this point, I looked at the Civil Servants in the officials’ box to see their reaction to the minister going beyond his brief.  One had a wry smile. 

Having completed discussion of the remaining amendments, the House rose relatively early. Report stage of the Bill is scheduled for 4 November and 11 November.

He is, as has been widely reported, supporting David Davis in the Haltemprice and Howden by-election because of his vehement opposition to the proposal for 42-days pre-charge detention. 

I was struck by his comments at the end of an article last week in The Daily Telegraph explaining his reasons for supporting David Davis.  He concluded:

‘If the Lords, as expected, also rejects 42 days, it would be a constitutional outrage to use the Parliament Act to enforce the will of the Commons on the second chamber.’

Coming from someone who one would expect to support the will of the elected House over the Lords, this is a notable recognition of the role of the Lords in defending civil liberties.

The House of Lords does not exist to act as a conduit for public opinion, but neither is it oblivious to what people think.  My view, which I expressed in response to a comment on an earlier post, is that we have to be prepared to engage with those outside the House prior to taking a decision and then be willing to explain our reasoning once we have done so.   We have serious and informed debate in the House but it should not, and does not, take place in a vacuum.

On the provision for 42 days detention, it is likely that the House will vote against it.  There is, though, plenty of time to listen to those who take a contrary view.  It looks likely that we will not reach the provision until after the summer recess.  One problem I have with support for the provision, though, is getting to grips with the argument.   Popular support tends to be expressed in rather vague terms, some commentators writing disparagingly of civil liberties – indeed putting the term in inverted commas – and saying that we should be willing to keep people in custody if it will save lives.  However, this appears to be premised on an acceptance that the provision is needed for that purpose.  My view is that there has to be a compelling case if we are to take such a major step.   I would be inclined to support it (a) if there were problems with the existing (extended) period for detention; (b) if the police or security services were making a united call for it and (c) if there was no alternative.  None of these applies.   There is no clear evidence that an extension is needed (it is designed as a reserve power), there is no clear call from the police and security services (they are divided), and there are alternatives both in the existing law and in proposals such as allowing post-charge questioning.

The provision has been subject to criticism from both the Joint Committee on Human Rights and the Home Affairs Committee in the Commons.  There are also major problems with the intended safeguards now included in the Bill.  It is clear from the report of the Joint Committee that the provision may well fall foul of Convention rights.  Given that, we could always take the line ‘well, let us pass it and leave it to the courts to deal with’.  That would be an abdication of our responsibilities.  If we believe it to be unjustified, then we have to vote accordingly.  We may be wrong, and unpopular, but unless there is a strong case made, which we have so far not heard, I for one will not be supporting the provision.

The same afternoon, in the Joint Committee on the Draft Constitutional Renewal Bill, we will be taking evidence from two former Cabinet secretaries (Lord Wilson of Dinton and Lord Turnbull of Enfield) and Professor Peter Hennessy on the Bill’s provisions covering the civil service.  Professor Hennessy is always good value for money – informed and irreverential.  We will then hear from the Clerk of the House of Commons, his equivalent in the Lords (the Clerk of the Parliaments), the Serjeant at Arms and Black Rod, on demonstrations in the vicinity of Parliament.  It will be interesting to see if they all take the same view.  I suspect they may not.