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Lord Anderson of Ipswich: Lord Speaker's Corner

8 May 2024 (updated on 8 May 2024)

Sovereignty, tackling terrorism and even Macbeth are on the agenda in the latest Lord Speaker’s Corner as David Anderson, Lord Anderson of Ipswich KC, speaks to Lord McFall of Alcluith.

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Lord Speaker:

Lord Anderson, David, welcome to the Lords Speaker's Podcast. It's a pleasure to have you. Can I start with your early life, I believe that you were brought up in Scotland, in Elgin. Your family had a tartan business, but that was discarded and your family came down and your father was a teacher.

Lord Anderson:

Yes, that's right. My family made kilts and tartans, actually in Edinburgh, and I grew up in Edinburgh and in Elgin. And I was quite a patriotic Scot as a boy, I loved the history, I knew all about Bannockburn, I knew all about Culloden. But I have to accept it's 50 years since I lived in Scotland. So when I had to decide where I belonged to when I was made a member of this place, I decided on Ipswich where I now live rather than perhaps Inverleith where I grew up.

Lord Speaker:

And your father had been a teacher?

Lord Anderson:

Yes.

Lord Speaker:

He had an influence on the King at Gordonstoun.

Lord Anderson:

He did.

Lord Speaker:

He had a relationship in his academic capacity with Tony Blair, Boris Johnson and Rishi Sunak. So you were well-connected, were you not?

Lord Anderson:

Well, he directed Charles in Macbeth at Gordonstoun, which was a great success for the prince, and I think a great success for my father. Blair, he probably knew the best because he was his housemaster at Fettes College in Edinburgh. And Blair probably caused him more trouble than the rest of them put together. My father in fact predicted a brilliant career for him on the stage. But of course he found other things to do. And much later in life when he'd moved to England, he ended up as headmaster of Eton. And young Cameron and young Johnson were among his charges there.

Lord Speaker:

Was that a good start for you, did you gain anything from that background?

Lord Anderson:

Nothing at all. I remember watching Blair in the rehearsals. I think he played Mark Antony in Julius Caesar, who of course is the Tribune of the people. My mother had to make the costumes. And they were all made out of sheets. And she'd edged Julius Caesar's sheet with blue and the same for Cassius and Brutus. But Mark Antony, because he was the Tribune of the people, got a red edged sheet. And she always claims credit for launching Tony Blair into the Labour Party when he could so easily have gone the other way.

Lord Speaker:

So a portent of the future?

Lord Anderson:

Possibly, yes.

Lord Speaker:

And your mother's modesty is not recognised. Okay. Now, when you went to university, after that you went to America, and then you went to the EU and you were in Lord Cockfield's office. Now that was very interesting I would suggest because Mrs. Thatcher sent him there to implement the single market. Which as we know, there's been a long journey in that. And the single market isn't seen as favourably now as it was then. Could you give us your experience of that office? It must've been a fascinating time.

Lord Anderson:

It was a very inspiring time. And it taught me that the European Union can work if people get behind the agenda. And it taught me that the United Kingdom could play an absolutely central role in that. He was the father of modern income tax, as you know, a Conservative peer, sent there by Mrs. Thatcher, but a man of a very great intellect.

And he got together with Jacques Delors, who was the president of the commission at the time, an equally intellectual man. And when the two of them agreed on something, it simply got done. And what they agreed on was a programme of 200 laws that were necessary to complete the internal market, remove all the barriers to trade in goods, services, movements of capital, movements of workers between the member states of the EU.

And it was my absolute privilege to be in his office for six months watching that happen. I think the other thing he taught me was that Europe was only going to work if it was sufficiently democratic.

One of the things I used to have to do was travel with him every month to Strasbourg to the European Parliament where it then sat and answer questions from parliamentarians. And I remember he gave us a lecture on the first day of the new year. He said he thought some of us weren't treating Parliament as respectfully as perhaps we should. And he reminded us of what happened to the Stuart Kings in this country when they got high and mighty and above themselves. And he said, "One day it is the Parliament that will hold the power in Europe, and you must remember that when you interact with them." And I thought that was a great lesson as well.

Lord Speaker:

During the Brexit debate, I remember democracy and the lack of democracy in the EU being criticised. And if my memory is correct, the governor of the Bank of England at the time, Mervyn King, made that very point as well. Could you give us your views on that? How did that happen, it got to that stage?

Lord Anderson:

Well, the cheap point to make is that some of those criticisms were made by people who then tried to prorogue our own Parliament. So perhaps difficult to take lessons from some of them. But I think it's true.

Lord Speaker:

Mervyn King didn't do that.

Lord Anderson:

No, of course, Mervyn King didn't, no. But I think it is true that the concept of a European parliamentary democracy never really cut through in this country. Indeed, it never really cut through entirely anywhere else in Europe. And I think that was fanned by a very hostile press, which did seem to be unique to this country, that suggested that everything was being done by unaccountable commissioners in Brussels. Which of course wasn't true. And the commission simply proposes laws, and they're passed by the Parliament and by the member states sitting in the council. But I'm not sure that really got through sufficiently. And so it was possible for people in whose interests it was to paint the EU as a profoundly anti-democratic or undemocratic organisation.

Lord Speaker:

You then studied and became a lawyer and were assigned to Brick Court Chambers. Why did you become a lawyer?

Lord Anderson:

Because my father told me it was a good idea. He'd rather wanted to be an advocate and settled for being a school teacher, which he did extraordinarily well. And it hadn't occurred to me. I'd done a degree in history, which I'd absolutely loved. History was my first love. But he didn't think there was much of a career in history. So he suggested I turned to the law. Which I did, initially with some reluctance.

What I really came to enjoy was the European law because you were inventing effectively a new system there, a system that had to be common to all the different countries of Europe. Disputes were adjudicated in a central court in Luxembourg. And it seemed to me much better to do it that way than to be fighting each other as we had been for hundreds of years. I thought there was something rather inspiring in that. And also something intellectually very interesting about helping to devise a new system of law that could govern relations between all those states.

Lord Speaker:

And you are involved with the EU Court of Justice, and if I remember, you were involved in 150 cases.

Lord Anderson:

Something like that.

Lord Speaker (07:05):

What stood out from your time then?

Lord Anderson (07:08):

Well, so many. I mean, one big one was the Factortame case, which again brings up this question of parliamentary sovereignty. Because this was an Act of Parliament, our Parliament, the Merchant Shipping Act 1988, which had been promised by the Conservatives just before an election.

And which prevented Spanish people or people who resided in Spain from owning British fishing vessels. Of course, a lot of these Spanish people had lived in England a long time. And some of them had even been born here or lived here since they were young children. And they were suddenly deprived of their livelihood and required to sell boats that they'd perfectly legitimately purchased.

So we took a case about that. And in the end, what the Court of Justice said is, "Well, we don't care that it was the British Parliament that signed off on this law. You are all under a duty to accept the supremacy of European law, and that means not discriminating against Spanish people. And so you will please disapply the law."

And so our own courts obediently did. This was terribly exciting as a young lawyer. But I did wonder in retrospect whether it might've been one of the reasons for Brexit. I remember my clerk, I was talking to him the morning of the referendum result, and he knew I wasn't very happy with it. And he said, "Well, there you are Mr. Anderson, you shouldn't have won Factortame." So these things have a way of coming back. And that's what happened.

Lord Speaker:

And you were involved in Europe and human rights law, and I believe that you spent time in Eastern Europe engaged in those subjects.

Lord Anderson:

I spent a lot of time in the years after the Berlin Wall came down travelling in Central and Eastern Europe and teaching judges, prosecutors, lawyers, students about European law and about European human rights law. Though I should say, they probably had more to teach us about human rights law because they understood what it was like having your human rights violated in a very serious way.

What they were fascinated to learn about was the mechanisms of the Council of Europe, which they all then joined, the European Court of Human Rights in Strasbourg, which enabled people to bring cases there.

But it was a very inspiring time. And again, it was striking how they looked to the United Kingdom for guidance. Mrs. Thatcher had made a speech, which I remember seemed almost eccentric at the time, in which she described Prague, Warsaw, Budapest as great European cities. And that wasn't forgotten in Eastern Europe. And as a consequence, we were held in high regard. And they liked talking to us because of course we'd joined late, we'd joined the European Union late, just as they were hoping to do. We were therefore able to give them a bit of guidance on what it was like being a new member.

Lord Speaker:

Did our country have a real punch at that time globally? What would you say about Britain's position now regarding soft power?

Lord Anderson:

Well, I think we've had punch globally for at least 200 years, probably a bit longer than that. And I hope we'll continue to have it. I think we have a very high degree of soft power, and a lot of it is cultural. I think there is still great respect for our institutions and so on.

What I think we've lost by leaving is the influence on global standards, global negotiations. You think of the standards that govern mobile phones throughout the world. They were developed by the EU. You think of data protection standards developed by the EU. Competition law, effectively an EU model that's rolled out across the world. And I'm sure we're going to see the same thing with the regulation of artificial intelligence and the industries of the future.

And I think the real loss for us is no longer being at the table when those decisions are made and no longer having influence over them. Of course, we can continue to do our own thing, we can continue to have brilliant ideas. Perhaps some of the ideas will be much better than those that the EU has. But at the end of the day, if you don't have those connections and if you don't have that influence, that mighty influence in the councils of the world, then you are really going to be a footnote when it comes to mapping out the legal structure for the future.

Lord Speaker:

And on behalf of the Secretary General of the Council of Europe, I believe you looked at the issue of freedom of the media, particularly in Eastern Europe.

Lord Anderson:

I was invited by the Secretary General to do some monitoring with a small team in four countries, Russia, Ukraine, Georgia, and Turkey. It's the first time anything like this had been done. And I think it was partly because Russia and Turkey had young new presidents, their names were Putin and Erdogan. This is almost 25 years ago. But they're both still there. And they were talking a good game about freedom of the media and they rather hoped that we would pat them on the back and say they were doing a good job.

Thankfully, in retrospect, we didn't. We didn't like the way journalists continued to disappear and be killed and be prosecuted for libel and all the rest of it. But it was an absolutely fascinating insight into those countries and the differences between them. And at the end of the day, I had to report back to the representatives of all the states of the Council of Europe, along with interlocutors from the countries that I'd been monitoring. And they heard what we had to say and acted accordingly.

Lord Speaker:

Our human rights mission globally, do you feel it's lessened over the years from the time you were undertaking this mission?

Lord Anderson:

I don't think there's ever been an age when human rights have been particularly conspicuously respected across the world. I think states that accept a series of international rules that constrain what they can do to their own citizens are still pretty unusual. And to my mind, that is the genius of the Council of Europe. It's a very imperfect institution. Russia is no longer a member. But with the exception of Belarus, the other countries of Europe are. And they do keep each other up to the mark, both through the court and through the political mechanism, which I attend two or three times a year, the Committee of Ministers, where they decide how to enforce the court's judgments. And I've no doubt that it has been a really powerful and useful engine for bringing those countries of Central and Eastern Europe into the European fold, ensuring that they more or less conduct themselves according to European values and in providing a bit of discipline for when they don't.

Lord Speaker:

And then from 2011 to 2016, I believe you were the independent reviewer of terrorism. Now that would be the time of the Westminster Bridge atrocity, the Manchester Arena and Borough Market [attacks]. So that must've been a very tense and demanding time for you.

Lord Anderson:

Well, those atrocities came just a few weeks after I'd finished doing the job, but I was brought back at that stage really to sit in MI5 for three months and visit frequently counter-terrorism policing. And just sit down with them and try and work out what had gone wrong. So this wasn't an inquiry or I wasn't seeking to allocate blame. I was seeking to have them speak completely freely with me. And with them produce a list of things that they needed to put urgently right.

As we were doing this, we didn't know of course, whether this was just the beginning, and the big attacks that we'd seen in Westminster and Borough Market and the Manchester Arena were just the beginning of something much bigger. Fortunately, they turned out not to be.

But it was a very good time to do that because often if you're trying to suggest to an institution that it's done something wrong, the defensive redoubts are built and windows close and people clam up. I think they were so shocked. We'd done incredibly well until 2017, there'd been very, very few deaths for 12 years from terrorism in this country. And I think people were looking at Belgium and France and possibly beginning to feel a little bit smug. Well, we had no cause to be smug after those incidents. And there was a genuine openness and willingness to change, which I thought was very inspiring.

Lord Speaker:

Could you, if possible, share some of your insights in terms of what went wrong?

Lord Anderson:

Well, there were some specific errors which MI5 put its hand up to in the specific cases. I think what it was more useful to focus on were the systems and how they weren't working, in particular for joint decision-making between MI5 and the police.

You had in Manchester for example, a young man, Salman Abedi, who blew himself up, who was known to have been dabbling in crime, drugs, low-level criminality in south Manchester. But the police in south Manchester had no idea that there might be ... they didn't know which of the people they were looking at raised national security concerns.

And one of the messages that came out was that more decisions had to be made jointly by MI5 and police. The secret ring had to be expanded a little bit just to let more people know at least the very basis of what suspicions were to enable more effective policing.

I think another big thing was the need to cooperate more with the private sector. The days when you could just have a big computer in GCHQ that would handle all the data you needed, if they ever existed, have certainly now long gone. And if you are going to be effective, for example in stopping people from buying bomb-making ingredients online, you're going to need collaboration from big private companies as well, online marketplaces or online sellers and so on.

And for that, of course you need trust. And the biggest thing I think I did as independent reviewer was the invitation of the three party leaders at the time, work for a year and produce a report, which I called A Question of Trust, on what our law of surveillance and investigatory powers needed to look like in the future.

And it wasn't that the law was exactly wrong, but it was extremely obscure. No one even in Parliament really understood what was being done under it. And the climate was absolutely rife for conspiracy theories, particularly when Edward Snowden, if you remember?

Lord Speaker:

I do.

Lord Anderson:

Who stole information from the CIA, NSA, came on the scene. It was dangerous. And it was dangerous because there was not sufficient trust of the people that are supposed to keep us safe. So what we ended up with was a bill which became an Act of Parliament, which greatly increased the transparency. That doesn't mean telling the bad guys everything you're doing. But it does mean being clear with Parliament and the public what the powers are and how in principle they could be used.

And the other big change we made, and we borrowed this from North America, from Canada and the US, was to introduce authorisation by judges of warrants for the most serious interferences. If you're going to bug somebody's phone or something like that, you don't just add it to the pile of 10 warrants that the Home Secretary signs off on every single day. You actually have a judge as well have a really careful look at it. And that I think gives the public some assurance that these powers are not going to be misused.

Lord Speaker:

Your report, A Question of Trust, have your recommendations been implemented?

Lord Anderson:

Yes. I mean, pretty much every one. So the Investigatory Powers Act 2016 is my fault if you don't like it. And along with others who wrote reports at the same time, I think I could say I was one of the progenitors of it.

One thing that gave me particular satisfaction was that the United Nations rapporteur on the right to privacy came to the United Kingdom to look at this law. And these rapporteurs do not tend to look particularly favourably on what we do in the UK. They often have a long list of criticism. And this particular rapporteur described it as world-leading and said that we were up there with a small handful of countries who had successfully reconciled the demands of security with the right to privacy. And I thought that was a very pleasing recommendation.

Lord Speaker:

One criticism I've heard over the years is that the communications between the different police forces is, some would say, unsatisfactory. And the number of police forces in England, is it 45 or whatever it is, that needs streamlined. What's your views on that argument?

Lord Anderson:

It's what no politician dares to say. But not being a politician, I will say it.

Yes, the 43 force model in England and Wales has long outlived its usefulness. You've seen that that's been bypassed in some respects, for example, counter-terrorism, to some extent organised crime. You've got the regional organised crime units, you've got the NCA. But it's still a source of massive inefficiency.

And as you rightly say, the police have not cracked data handling. It's a perennial problem. I think it's partly about money, but it's not just about money. And in a world which increasingly happens online, and in which crime also increasingly happens online, it's great to have neighbourhood police officers on the corner of the street, but you also need them on the internet to combat the online fraud and all the other interferences that we're seeing.

So I think that's a real challenge. And I don't think you're going to crack it by the 43 force model.

Lord Speaker:

My previous existence in the House of Commons, I was involved as an observer with the Proceeds of Crime Act and the City of London Police that oversees the financial sector. And it seemed to me there was a disparity between what they did, the City of London Police, and the police in the rest of the country.

Lord Anderson:

Yes. Well, the City of London is a very unusual force with its own proud independent traditions. But of course we've now got the National Crime Agency as well, which is, I think, still finding its feet but beginning to find them rather well. I have a niece who works there, so I mustn't say anything impolite about it.

Lord Speaker:

Well, should we go further in terms of integration in that?

Lord Anderson:

We could certainly integrate further at the force model, there's no question, at the force level, there's no question about that. I think counter-terrorism policing actually works very well. The structure was developed by Tony Blair after, if you remember, the London tube and bus attacks in 2005.

Lord Speaker:

I do, yeah.

Lord Anderson:

Again, the sense was this might be the beginning of something much, much bigger. Ian Blair, when he was commissioner, went on the radio in 2006 and said he thought we were going to lose more lives, more civilian lives to terrorism than we lost in World War Two. Well, I assume he was thinking of the 30,000 or 40,000 killed in the Blitz. Fortunately, that hasn't happened. We've lost a total of about a hundred lives in this country from Islamist terrorism this century. And I think that's a lot better than we thought it was going to be at the start of the century.

But we do have a policing model which is actually pretty well adapted to the terrorist threat. I think we can be pretty proud about how we've managed things over the last 20 years. Yes, there have been moments of panic, moments where media in particular have gone overboard. They've been seduced by these images of young men from London pretending to be medieval warriors with swords, all to capture the front page. But we didn't lose our heads. We introduced some strong laws, but where necessary we've pared them back again. And I think although it's certainly premature to say we've ridden out this particular episode in our history, I think we've got through it at least with our basic values and our basic rights pretty much intact.

Lord Speaker:

From your time as independent reviewer of terrorism, what's the main lesson that you learned there? And what's the message you will give to politicians and society for the future?

Lord Anderson:

Remember what terrorists want, they're not like other criminals, they want three things. They want revenge, they want renown, but above all they want reaction. And if you are foolish enough to overreact to what they are doing or to what they are threatening to do, then you are giving them exactly what they want. Because you are marginalising whatever suspect community they are trying to draw their support from. Whether 30 years ago that was Irish people, whether more recently it was Muslims. And you are polarising society into exactly the extremes that the terrorist would like you to believe that the world is all about.

You've got, and it's hard to do it sometimes, but you've got to retain the rule of law. And I think if I may say so, long before I joined it, the House of Lords took a very important role in this. It did not join the clamour to say, "Yes, let's allow the police to lock people up for 90 days before they're charged." It did not go in for the worst excesses of internment that we'd seen in the seventies-

Lord Speaker:

And it helped change the law on that.

Lord Anderson:

It helped change the law. They stood out against some things that were illiberal. And instead of having 90 days, we now have 14 days that the police are allowed to keep someone before they're charged.

I made a point of always asking senior police officers when I saw them, "Do you miss 28 days? Do you wish you had 90 days?" They always said no, 14 was enough. So it's so important to keep your balance. And I think in a way we were quite well-equipped to do that in this country because we'd had the experience of Northern Ireland. We did make some terrible mistakes in Northern Ireland. I mean, internment, you understand why it was introduced, hundreds of people being killed every year in the early seventies. But it still leaves a stain. It still plays a part in dissident Republican propaganda. And I think we learned something from that when 9/11 came along and we had a chance to react in a slightly more measured and mature way.

Lord Speaker:

Northern Ireland, I would say the view held is that that was a great success eventually because it brought the different political factions together and helped stabilise society. I presume that you agree with that?

Lord Anderson:

Absolutely, yes. And I credit, among others, Jonathan Powell, of course was Tony Blair's chief of staff. I've been lucky enough for the last five or six years to work in a small way with Jonathan who has taken his experience from the Good Friday Agreement, which he brokered, and applied it all over the world. So he's the chief executive of a peace-building NGO, which I chair.

And the peace deal was done in Colombia. Similarly in Mozambique, Spain - Eta, various other theatres where Jonathan and this charity have played a part. Most of them unfortunately you can't talk about, and many of them are still going on.

Lord Speaker:

Yeah, aspects of Northern Ireland he couldn't talk about as well.

Lord Anderson:

Indeed. But it is a very rare gift to broker an agreement like this. And of course you have to remember the agreement is not the end point. The agreement is usually only the beginning. We certainly saw that in Northern Ireland.

Lord Speaker:

The terrorism aspect about it, Jonathan Powell, whom we had the privilege of inviting along here, when he came, he was very open and he said, "Look, if any peace deal is going to be made, then you have to talk to terrorists themselves." Now that's a controversial subject and some people would never agree to that. What's your view?

Lord Anderson:

Well, he's entirely right about that. And as an organisation, one of the things we do is talk to people that governments couldn't talk to. And for that reason, some of our funding comes from western governments who see the value of us having conversations that they couldn't have themselves.

But there's always, if you think even about Russia-Ukraine, near the start of the invasion talks began on the agreement to let the grain ships out through the Black Sea. Now, that was not exactly the major issue in that conflict. Very far from it. But at least it was a channel of communication, at least it was personalities perhaps getting to know a little bit about each other.

So when the climate changes and talks in some respect become, perhaps wider respect, become possible, you have the basis for doing it. And I think there are very few conflicts worldwide, if any, where you couldn't apply the same principle.

And one thing that I think was very effective in Northern Ireland was the establishment of back channels whereby people couldn't talk officially to each other but could still find ways of signalling intentions and communicating indirectly before it was possible to meet.

Lord Speaker:

There's been quite a bit of discussion in society about the sovereignty of Parliament, particularly amongst politicians. Could you give us your views on that? And maybe tackle the issue of power, where does power lie in this country?

Lord Anderson:

Well, after the Factortame case, some people might've said the powers lie with the courts. If the courts can strike down acts of Parliament, then what's the point of Parliament? Now we're out of the EU now, so that's not going to happen again. And I'm glad we have a political constitution not a judicial constitution. I don't look with envy to the United States where the Supreme Court can strike down anything Congress can do. In this country we have the opposite. We've actually had a couple of bills through in the last 12 months which aim to reverse a decision that the Supreme Court has taken because Parliament decided that it took the right course. So I think in having a political constitution where Parliament is in charge, we've done the right thing.

Where I think the difficulty lies is in the relationship between the executive and Parliament. Now of course, we don't have a complete separation of powers in our system. The two have always worked closely together. But I think it was Gladstone who once said that our constitution more than any others presumes the good sense and the good faith of those who work it. And I'm not sure we've seen that uniformly over the last five or 10 years in particular.

And I'm thinking of things like these framework bills which they put through that don't really say anything, except that ministers shall have the power to make regulations to do largely what they want within perhaps certain very vague limitations. I'm looking at the power of the state to conclude international treaties where actually the House of Lords has through our new International Agreements Committee achieved a little bit of leverage. But considering the breadth of the subject matter of a modern international treaty, I think you could make an argument for Parliament being more involved.

So I think there are some adjustments to be made between the power of the executive and Parliament. And when you see the contempt that is shown by an executive that thinks it can prorogue Parliament, get it out of the way in order to do what it wants, and that really takes us back to the Stuart period, I thought that was an outrage. I'm glad the Supreme Court stopped it. I would've been even more glad if we could have stopped it in Parliament.

And in fact, one thing I was engaged in as a young peer recently arrived in this place was drafting a bill that would've achieved that. There wasn't time unfortunately to put it through at the time when we controlled our own order paper. But it's better I think for Parliament to sort these things out where it can rather than the courts.

Lord Speaker:

Our esteemed historian who's in here, Lord Peter Hennessy, has called it the 'good chaps theory' in the constitution. Are you a supporter of that?

Lord Anderson:

Yes, I think he was saying exactly what Gladstone was saying in 1879, that our constitution more than others presumes the good sense and the good faith of those who work it. And it's a very delicate balance. And if you display anything less than that, not just for Parliament but for judges or for the BBC or for the other institutions that collectively make up our democracy, then I think you're treading a very dangerous road.

It reminds me a bit of the City of London, we had Big Bang in 1986. Before that it was a place where your word was your bond. You probably were at school with a guy on the other side of the table, or at least you knew his reputation, and therefore great books of regulations were not necessary. And I think to some extent that is how our political settlement has worked for quite a long time.

What I think the last few years have shown us, and I hope it was just a Brexit phenomenon, but I'm not sure that it was, is that some of those assumptions about good behaviour can't necessarily last. And it may be, I hope we're not going to need books of regulations and government by regulator, it's a pretty dismal prospect, but I think there is more that we need to do about standards in public life. Not only to enforce them on people who overstep the mark, but also to give the people out there confidence that we do have a working and honest system of government. And I'm not sure that confidence at the moment is very high.

Lord Speaker:

What has led to that you think this dramatic fall in confidence?

Lord Anderson:

Well, I think ... it's easy, isn't it, to get on your high horse as a crossbencher who's never been elected to anything. You could say the root of it all was the financial crash of 2007, 2008 because this country hasn't really got very much richer since then and people aren't feeling any richer than they were. And I think with that sense of economic disadvantage comes the sense of being left behind, a sense of being disregarded. You look at very rich people flaunting their wealth, you look at politicians apparently being influenced by that. And it's very easy to fall into a corrosive cynicism that goes beyond the sense we're not being very well governed at the moment towards the sense that, well, actually nothing works at all. And then beyond that into the conspiracy theories that the whole thing is a pretense and capitalism stinks and we need to start again.

We're maybe halfway along that road. I'm not saying we haven't been there before. We've perhaps been there for example in the 1970s. I'm certainly not making a party political point. But it's dangerous. And if we are wise, we will adjust to that. And to my mind, standards in public life is the thing you have to fix first. If you don't do that, it's like putting water into a leaky bucket. You can have all the brilliant ideas for constitutional change and proportional representation or reforming the House of Lords or whatever you want to do. But if people don't feel that there is a basis to trust those who are taking decisions on their behalf, then it's a waste of time. So that's where I would start.

Lord Speaker:

And the Nolan Principles which were established in the 1990s, is that the foundation that we should build on?

Lord Anderson:

Yes, they're terrific. But you have the Committee on Standards in Public Life, which is the guardian of the Nolan Principles, coming up with-

Lord Speaker:

Lord Evans.

Lord Anderson:

Yes, Lord Evans, former director of MI5. So they're not a bunch of revolutionary firebrands. They came up with a series of very sensible recommendations, most of which the government hasn't implemented. I actually have a private member's bill at the moment which I hope might get a second reading later in this session. The point of which will be to put those proposals on the statute book. And it may be that if it doesn't happen that way, we'll have a government after the election that is prepared to look at that.

Lord Speaker:

I mentioned the good chaps theory and the unwritten constitution that we have. I presume you'll be a supporter of the unwritten constitution. But what could we do to ensure that our constitutional arrangements maybe are bedded further?

Lord Anderson:

Well, it's a great question. I actually wrote a piece recently called Writing a Constitution, but it didn't end up in favour of a codified constitution like most other countries have. What it did suggest is some strengthening of important things. And one thing was this question of standards in public life.

So for example, you have an independent advisor on ministerial interests who cannot initiate an investigation of their own initiative. They need to have the consent of the Prime Minister before they can do that. Well, if the investigation was going to be into the Prime Minister or someone who's politically close to the Prime Minister, it's hard to see how that is acceptable.

I think we need tightening of rules on lobbying, perhaps an offence of corruption in public life. So there's that whole side of things.

Then I think there's the question of parliamentary reform, which perhaps is a subject of its own. And then there's the question of constitutional watchdogs. We do have a constitution. It's written down in all sorts of different places. And I think it's absolutely right that it's not enforced by the judges. But should there be somebody with the authority to say, "This bill seems not to comply with our constitutional norms as they've evolved over many years."

We have the Constitution Committee in this House on which I'm privileged to sit. And we've actually just agreed to do something I think very significant and very exciting, which is to adopt a little code of all the principles that we have applied in our reports over the years, so that next time a bill comes along that we think is on constitutionally dangerous territory, instead of just saying, "We think this might be constitutionally dangerous." We can say, "We think chapter 5.5 of the code may be infringed by this provision and the House might want to have a careful look at it."

So it's to provide a sort of institutional memory of the things that are important in our constitution. And it's to focus a bit of attention, rather as the Joint Committee on Human Rights has the Human Rights Convention that it can apply and refer to, I think its reports are very influential in this House and in the other place. Similarly, I think if we had a constitutional code or a code of constitutional principles for use in legislation, then that would help actors in the constitutional drama. And I think it would also help inform the public, people who are interested in knowing more about our constitution, but find it very difficult to see what it's all about because it's not written down in one place, might find that easier as well.

Lord Speaker:

Some would say abolishing the House of Lords is the way to having better governance. But do you subscribe to the view that if we abolish the House of Lords, that's just one aspect that should be reworked in terms of governance? I remember Lord Sedwill, former Cabinet Secretary, making a point that the governance overall has to be looked at, whether it's a civil service, whether it's Parliament, the executive, whether it's a relationship in devolution with the rest of the country.

Lord Anderson:

Yes, that's not an excuse for doing nothing. And there are certainly things that I would do if I had the chance to reform the House of Lords. But in terms of do we need a second chamber? I rather like what Meg Russell had to say about this. She said second chambers mean second thoughts. And if you like evidence-based policymaking, you like them. And she points to I think more than 80 countries in the world that have second chambers. About half of those incidentally aren't fully elected. Although most of them have an elected component.

And I think what we bring is the advantage of time, where if something has been rashly inserted into a bill as it goes through the Commons, we can take time to sort it out. And we bring expertise. And actually we have some political weight of our own. I'm not one of those who thinks it's all about the Crossbenchers, far from it. I think it's important to have Crossbenchers in the House for the particular qualities that hopefully we bring. But I think it's often the big political beasts who give what we say some real force.

And if someone like Michael Howard, a past leader of the Conservative Party, perhaps a future leader, but certainly a past leader, stands up in a debate on a government bill and says, "I don't think this bill should be threatening to break our international agreements in the way that it is." Then that has far more cut through than if it was said by a lawyer or even a senior retired judge.

In terms of the reform of House of Lords, you mentioned you have your own views, can you share them with us. But also in the wider context about governance in the country, what would you recommend there? So both the House of Lords and the rest of the government machine.

Well, I would love to see, and I don't know how you do it, but I would love to see a House of Commons that was more serious about its part in legislative scrutiny. As it seems to me, if you're a member of Parliament, your incentives are very much to stay close to your constituents. And absolutely right, you are representing them and you are looking for them to re-elect you someday. And your other incentive is to be loyal to the party of which you're a member. Because if you're ambitious, you want to rise in that party. And neither of those incentives really align to doing the legislative scrutiny, which it's really a large part of what Parliament is there for. And as a consequence, we are having to do that ourselves.

Now, I would love to find a way of changing the incentives in the Commons. To some extent it's been done by the select committee system and by the election of select committee chairs, which I think does give some MPs an alternative route. But for the time being, I would say that the scrutiny we provide is essential.

Lord Speaker:

In 2018, you applied to become a member of the House of Lords as a crossbencher, and you went through the House of Lords Appointments Committee. Why did you decide to apply? And what did you think you would bring to the House of Lords?

Lord Anderson:

Well, it had never crossed my mind, but it was my experience really as independent reviewer, giving evidence to parliamentary committees, listening to debates where they were debating proposals that I'd been involved with, and just seeing what a wonderful careful job the House of Lords did, whether it was on the Justice and Security Act 2013, Investigative Powers Act 2016. And I was encouraged, I didn't know there was still a people's peers scheme whereby you could simply apply with a CV and six referees. But an existing member of the House told me I could do that and encouraged me to do it. And so I did and I've never regretted it.

Lord Speaker:

And what have you gained from being a member of the House of Lords?

Lord Anderson:

I've gained everything. I started as a lawyer. And lawyers certainly in the sort of area where I practised, if they're not careful, they can become quite narrow. You get used to following instructions from your client, you make submissions, you never express your view to the court, you make submissions based on the evidence, based on the decisions of higher courts. And you can have a very agreeable life without really poking your head very far above the parapet at all.

And what I saw first of all with the independent reviewer job, and then more recently with the House of Lords, is that it is a very exciting world out there. There's a variety of people to meet that I wouldn't have met probably in my old profession. Arguments don't just happen on the day that's been appointed for them three months in advance. And they're not always decided by fully rational judges who if you don't like the judgement can be appealed to an even more rational appellate body. Political arguments blow up out of nowhere on a Sunday afternoon. And sometimes you need to be on the radio and expressing a view. And I find that intriguing and important and ultimately more satisfying, possibly even more useful than the practise of law.

Lord Speaker:

If you were to address a citizen's assembly, and the question was abolish the House of Lords, given your skills as an advocate, how would you win the argument?

Lord Anderson:

Well, I'd win it by going for change. And I'm afraid I would make some big changes. I cannot see a principled argument for retaining a quota for people who are hereditary peers. It's difficult for us to say this because you and I know how good some of the hereditary peers are. But I always think, well, if they're that good, then there will be a way of getting into the House of Lords through a more meritocratic route.

The political cronyism, again, simply has to stop. It cannot be the case that by dint of giving £3 million to a political party, you can secure a place in the House of Lords. If it's not corrupt, it's as near to corrupt as makes no difference. And it's a terribly bad thing for our image.

So I think what I would try and do with a citizen's assembly, I'd point to what some people call our output legitimacy, I'd point, in other words, to all the great work that we do, the culture of justification that we represent, the questioning, the probing, not taking things at face value. And saying it's important that that continues.

You could look at this country like a family, and in the House of Commons you have parents who tell young children what to do. But if the parents are wise, they will sometimes take advice from grandparents. And it seems to me that's what we represent in the House of Lords. We don't have the power, but we have influence. And if people have good sense, they will listen to us.

Lord Speaker:

Well, thank you very much for that. That was replete with wisdom, experience, and honesty. I'm grateful for you to that. And I wish you well in your future work in the House of Lords, but also as you work in the legal area. Thank you very much.

Lord Anderson:

Thank you very much.

 

In this episode

‘You were inventing effectively a new system… that had to be common to all the difference countries of Europe… It seemed to me much better to do it that way than to be fighting each other as we had been for hundreds of years.’

King’s Counsel Lord Anderson is a leader in European and public law. He has been involved in multiple ground-breaking legal judgments and argued more than 180 cases at the European Court of Justice and European Court of Human Rights. In this episode, he talks to Lord McFall about Factortame, the landmark case on parliamentary sovereignty versus European law that saw English courts disapply an Act of Parliament. He also discusses the impact of this and other cases, reflecting ‘I did wonder in retrospect whether it might've been one of the reasons for Brexit.’

Lord Anderson also explains his thinking on sovereignty and where power lies today:

‘I think in having a political constitution where Parliament is in charge, we've done the right thing. Where I think the difficulty lies is in the relationship between the executive and Parliament... I think it was Gladstone who once said that our constitution more than any others presumes the good sense and the good faith of those who work it.’

He also shares his perspective that we don’t need a written constitution but argues  ‘if we had a constitutional code or a code of constitutional principles for use in legislation, then that would help actors in the constitutional drama. And I think it would also help inform the public.’

Lord Anderson was previously the Independent Reviewer of Terrorism Legislation. His work, including the influential report A Question of Trust, paved the way for greater transparency of the government’s powers and their use:

‘It was dangerous because there was not sufficient trust of the people that are supposed to keep us safe. So what we ended up with was a bill which became an Act of Parliament, which greatly increased the transparency. That doesn't mean telling the bad guys everything you're doing. But it does mean being clear with Parliament and the public what the powers are and how in principle they could be used.’

He also advised the government on the need for change following the Westminster and Manchester terror attacks, and argued for more cooperation including beyond the state. He explains ‘if you are going to be effective, for example in stopping people from buying bomb-making ingredients online, you're going to need collaboration from big private companies as well, online marketplaces or online sellers and so on.’ Lord Anderson also cautions about reacting to events, warning ‘if you are foolish enough to overreact to what they are doing or to what they are threatening to do, then you are giving them exactly what they want. Because you are marginalising whatever suspect community they are trying to draw their support from… it's hard to do it sometimes, but you've got to retain the rule of law.’

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Transcript

Lord Speaker:

Lord Anderson, David, welcome to the Lords Speaker's Podcast. It's a pleasure to have you. Can I start with your early life, I believe that you were brought up in Scotland, in Elgin. Your family had a tartan business, but that was discarded and your family came down and your father was a teacher.

Lord Anderson:

Yes, that's right. My family made kilts and tartans, actually in Edinburgh, and I grew up in Edinburgh and in Elgin. And I was quite a patriotic Scot as a boy, I loved the history, I knew all about Bannockburn, I knew all about Culloden. But I have to accept it's 50 years since I lived in Scotland. So when I had to decide where I belonged to when I was made a member of this place, I decided on Ipswich where I now live rather than perhaps Inverleith where I grew up.

Lord Speaker:

And your father had been a teacher?

Lord Anderson:

Yes.

Lord Speaker:

He had an influence on the King at Gordonstoun.

Lord Anderson:

He did.

Lord Speaker:

He had a relationship in his academic capacity with Tony Blair, Boris Johnson and Rishi Sunak. So you were well-connected, were you not?

Lord Anderson:

Well, he directed Charles in Macbeth at Gordonstoun, which was a great success for the prince, and I think a great success for my father. Blair, he probably knew the best because he was his housemaster at Fettes College in Edinburgh. And Blair probably caused him more trouble than the rest of them put together. My father in fact predicted a brilliant career for him on the stage. But of course he found other things to do. And much later in life when he'd moved to England, he ended up as headmaster of Eton. And young Cameron and young Johnson were among his charges there.

Lord Speaker:

Was that a good start for you, did you gain anything from that background?

Lord Anderson:

Nothing at all. I remember watching Blair in the rehearsals. I think he played Mark Antony in Julius Caesar, who of course is the Tribune of the people. My mother had to make the costumes. And they were all made out of sheets. And she'd edged Julius Caesar's sheet with blue and the same for Cassius and Brutus. But Mark Antony, because he was the Tribune of the people, got a red edged sheet. And she always claims credit for launching Tony Blair into the Labour Party when he could so easily have gone the other way.

Lord Speaker:

So a portent of the future?

Lord Anderson:

Possibly, yes.

Lord Speaker:

And your mother's modesty is not recognised. Okay. Now, when you went to university, after that you went to America, and then you went to the EU and you were in Lord Cockfield's office. Now that was very interesting I would suggest because Mrs. Thatcher sent him there to implement the single market. Which as we know, there's been a long journey in that. And the single market isn't seen as favourably now as it was then. Could you give us your experience of that office? It must've been a fascinating time.

Lord Anderson:

It was a very inspiring time. And it taught me that the European Union can work if people get behind the agenda. And it taught me that the United Kingdom could play an absolutely central role in that. He was the father of modern income tax, as you know, a Conservative peer, sent there by Mrs. Thatcher, but a man of a very great intellect.

And he got together with Jacques Delors, who was the president of the commission at the time, an equally intellectual man. And when the two of them agreed on something, it simply got done. And what they agreed on was a programme of 200 laws that were necessary to complete the internal market, remove all the barriers to trade in goods, services, movements of capital, movements of workers between the member states of the EU.

And it was my absolute privilege to be in his office for six months watching that happen. I think the other thing he taught me was that Europe was only going to work if it was sufficiently democratic.

One of the things I used to have to do was travel with him every month to Strasbourg to the European Parliament where it then sat and answer questions from parliamentarians. And I remember he gave us a lecture on the first day of the new year. He said he thought some of us weren't treating Parliament as respectfully as perhaps we should. And he reminded us of what happened to the Stuart Kings in this country when they got high and mighty and above themselves. And he said, "One day it is the Parliament that will hold the power in Europe, and you must remember that when you interact with them." And I thought that was a great lesson as well.

Lord Speaker:

During the Brexit debate, I remember democracy and the lack of democracy in the EU being criticised. And if my memory is correct, the governor of the Bank of England at the time, Mervyn King, made that very point as well. Could you give us your views on that? How did that happen, it got to that stage?

Lord Anderson:

Well, the cheap point to make is that some of those criticisms were made by people who then tried to prorogue our own Parliament. So perhaps difficult to take lessons from some of them. But I think it's true.

Lord Speaker:

Mervyn King didn't do that.

Lord Anderson:

No, of course, Mervyn King didn't, no. But I think it is true that the concept of a European parliamentary democracy never really cut through in this country. Indeed, it never really cut through entirely anywhere else in Europe. And I think that was fanned by a very hostile press, which did seem to be unique to this country, that suggested that everything was being done by unaccountable commissioners in Brussels. Which of course wasn't true. And the commission simply proposes laws, and they're passed by the Parliament and by the member states sitting in the council. But I'm not sure that really got through sufficiently. And so it was possible for people in whose interests it was to paint the EU as a profoundly anti-democratic or undemocratic organisation.

Lord Speaker:

You then studied and became a lawyer and were assigned to Brick Court Chambers. Why did you become a lawyer?

Lord Anderson:

Because my father told me it was a good idea. He'd rather wanted to be an advocate and settled for being a school teacher, which he did extraordinarily well. And it hadn't occurred to me. I'd done a degree in history, which I'd absolutely loved. History was my first love. But he didn't think there was much of a career in history. So he suggested I turned to the law. Which I did, initially with some reluctance.

What I really came to enjoy was the European law because you were inventing effectively a new system there, a system that had to be common to all the different countries of Europe. Disputes were adjudicated in a central court in Luxembourg. And it seemed to me much better to do it that way than to be fighting each other as we had been for hundreds of years. I thought there was something rather inspiring in that. And also something intellectually very interesting about helping to devise a new system of law that could govern relations between all those states.

Lord Speaker:

And you are involved with the EU Court of Justice, and if I remember, you were involved in 150 cases.

Lord Anderson:

Something like that.

Lord Speaker (07:05):

What stood out from your time then?

Lord Anderson (07:08):

Well, so many. I mean, one big one was the Factortame case, which again brings up this question of parliamentary sovereignty. Because this was an Act of Parliament, our Parliament, the Merchant Shipping Act 1988, which had been promised by the Conservatives just before an election.

And which prevented Spanish people or people who resided in Spain from owning British fishing vessels. Of course, a lot of these Spanish people had lived in England a long time. And some of them had even been born here or lived here since they were young children. And they were suddenly deprived of their livelihood and required to sell boats that they'd perfectly legitimately purchased.

So we took a case about that. And in the end, what the Court of Justice said is, "Well, we don't care that it was the British Parliament that signed off on this law. You are all under a duty to accept the supremacy of European law, and that means not discriminating against Spanish people. And so you will please disapply the law."

And so our own courts obediently did. This was terribly exciting as a young lawyer. But I did wonder in retrospect whether it might've been one of the reasons for Brexit. I remember my clerk, I was talking to him the morning of the referendum result, and he knew I wasn't very happy with it. And he said, "Well, there you are Mr. Anderson, you shouldn't have won Factortame." So these things have a way of coming back. And that's what happened.

Lord Speaker:

And you were involved in Europe and human rights law, and I believe that you spent time in Eastern Europe engaged in those subjects.

Lord Anderson:

I spent a lot of time in the years after the Berlin Wall came down travelling in Central and Eastern Europe and teaching judges, prosecutors, lawyers, students about European law and about European human rights law. Though I should say, they probably had more to teach us about human rights law because they understood what it was like having your human rights violated in a very serious way.

What they were fascinated to learn about was the mechanisms of the Council of Europe, which they all then joined, the European Court of Human Rights in Strasbourg, which enabled people to bring cases there.

But it was a very inspiring time. And again, it was striking how they looked to the United Kingdom for guidance. Mrs. Thatcher had made a speech, which I remember seemed almost eccentric at the time, in which she described Prague, Warsaw, Budapest as great European cities. And that wasn't forgotten in Eastern Europe. And as a consequence, we were held in high regard. And they liked talking to us because of course we'd joined late, we'd joined the European Union late, just as they were hoping to do. We were therefore able to give them a bit of guidance on what it was like being a new member.

Lord Speaker:

Did our country have a real punch at that time globally? What would you say about Britain's position now regarding soft power?

Lord Anderson:

Well, I think we've had punch globally for at least 200 years, probably a bit longer than that. And I hope we'll continue to have it. I think we have a very high degree of soft power, and a lot of it is cultural. I think there is still great respect for our institutions and so on.

What I think we've lost by leaving is the influence on global standards, global negotiations. You think of the standards that govern mobile phones throughout the world. They were developed by the EU. You think of data protection standards developed by the EU. Competition law, effectively an EU model that's rolled out across the world. And I'm sure we're going to see the same thing with the regulation of artificial intelligence and the industries of the future.

And I think the real loss for us is no longer being at the table when those decisions are made and no longer having influence over them. Of course, we can continue to do our own thing, we can continue to have brilliant ideas. Perhaps some of the ideas will be much better than those that the EU has. But at the end of the day, if you don't have those connections and if you don't have that influence, that mighty influence in the councils of the world, then you are really going to be a footnote when it comes to mapping out the legal structure for the future.

Lord Speaker:

And on behalf of the Secretary General of the Council of Europe, I believe you looked at the issue of freedom of the media, particularly in Eastern Europe.

Lord Anderson:

I was invited by the Secretary General to do some monitoring with a small team in four countries, Russia, Ukraine, Georgia, and Turkey. It's the first time anything like this had been done. And I think it was partly because Russia and Turkey had young new presidents, their names were Putin and Erdogan. This is almost 25 years ago. But they're both still there. And they were talking a good game about freedom of the media and they rather hoped that we would pat them on the back and say they were doing a good job.

Thankfully, in retrospect, we didn't. We didn't like the way journalists continued to disappear and be killed and be prosecuted for libel and all the rest of it. But it was an absolutely fascinating insight into those countries and the differences between them. And at the end of the day, I had to report back to the representatives of all the states of the Council of Europe, along with interlocutors from the countries that I'd been monitoring. And they heard what we had to say and acted accordingly.

Lord Speaker:

Our human rights mission globally, do you feel it's lessened over the years from the time you were undertaking this mission?

Lord Anderson:

I don't think there's ever been an age when human rights have been particularly conspicuously respected across the world. I think states that accept a series of international rules that constrain what they can do to their own citizens are still pretty unusual. And to my mind, that is the genius of the Council of Europe. It's a very imperfect institution. Russia is no longer a member. But with the exception of Belarus, the other countries of Europe are. And they do keep each other up to the mark, both through the court and through the political mechanism, which I attend two or three times a year, the Committee of Ministers, where they decide how to enforce the court's judgments. And I've no doubt that it has been a really powerful and useful engine for bringing those countries of Central and Eastern Europe into the European fold, ensuring that they more or less conduct themselves according to European values and in providing a bit of discipline for when they don't.

Lord Speaker:

And then from 2011 to 2016, I believe you were the independent reviewer of terrorism. Now that would be the time of the Westminster Bridge atrocity, the Manchester Arena and Borough Market [attacks]. So that must've been a very tense and demanding time for you.

Lord Anderson:

Well, those atrocities came just a few weeks after I'd finished doing the job, but I was brought back at that stage really to sit in MI5 for three months and visit frequently counter-terrorism policing. And just sit down with them and try and work out what had gone wrong. So this wasn't an inquiry or I wasn't seeking to allocate blame. I was seeking to have them speak completely freely with me. And with them produce a list of things that they needed to put urgently right.

As we were doing this, we didn't know of course, whether this was just the beginning, and the big attacks that we'd seen in Westminster and Borough Market and the Manchester Arena were just the beginning of something much bigger. Fortunately, they turned out not to be.

But it was a very good time to do that because often if you're trying to suggest to an institution that it's done something wrong, the defensive redoubts are built and windows close and people clam up. I think they were so shocked. We'd done incredibly well until 2017, there'd been very, very few deaths for 12 years from terrorism in this country. And I think people were looking at Belgium and France and possibly beginning to feel a little bit smug. Well, we had no cause to be smug after those incidents. And there was a genuine openness and willingness to change, which I thought was very inspiring.

Lord Speaker:

Could you, if possible, share some of your insights in terms of what went wrong?

Lord Anderson:

Well, there were some specific errors which MI5 put its hand up to in the specific cases. I think what it was more useful to focus on were the systems and how they weren't working, in particular for joint decision-making between MI5 and the police.

You had in Manchester for example, a young man, Salman Abedi, who blew himself up, who was known to have been dabbling in crime, drugs, low-level criminality in south Manchester. But the police in south Manchester had no idea that there might be ... they didn't know which of the people they were looking at raised national security concerns.

And one of the messages that came out was that more decisions had to be made jointly by MI5 and police. The secret ring had to be expanded a little bit just to let more people know at least the very basis of what suspicions were to enable more effective policing.

I think another big thing was the need to cooperate more with the private sector. The days when you could just have a big computer in GCHQ that would handle all the data you needed, if they ever existed, have certainly now long gone. And if you are going to be effective, for example in stopping people from buying bomb-making ingredients online, you're going to need collaboration from big private companies as well, online marketplaces or online sellers and so on.

And for that, of course you need trust. And the biggest thing I think I did as independent reviewer was the invitation of the three party leaders at the time, work for a year and produce a report, which I called A Question of Trust, on what our law of surveillance and investigatory powers needed to look like in the future.

And it wasn't that the law was exactly wrong, but it was extremely obscure. No one even in Parliament really understood what was being done under it. And the climate was absolutely rife for conspiracy theories, particularly when Edward Snowden, if you remember?

Lord Speaker:

I do.

Lord Anderson:

Who stole information from the CIA, NSA, came on the scene. It was dangerous. And it was dangerous because there was not sufficient trust of the people that are supposed to keep us safe. So what we ended up with was a bill which became an Act of Parliament, which greatly increased the transparency. That doesn't mean telling the bad guys everything you're doing. But it does mean being clear with Parliament and the public what the powers are and how in principle they could be used.

And the other big change we made, and we borrowed this from North America, from Canada and the US, was to introduce authorisation by judges of warrants for the most serious interferences. If you're going to bug somebody's phone or something like that, you don't just add it to the pile of 10 warrants that the Home Secretary signs off on every single day. You actually have a judge as well have a really careful look at it. And that I think gives the public some assurance that these powers are not going to be misused.

Lord Speaker:

Your report, A Question of Trust, have your recommendations been implemented?

Lord Anderson:

Yes. I mean, pretty much every one. So the Investigatory Powers Act 2016 is my fault if you don't like it. And along with others who wrote reports at the same time, I think I could say I was one of the progenitors of it.

One thing that gave me particular satisfaction was that the United Nations rapporteur on the right to privacy came to the United Kingdom to look at this law. And these rapporteurs do not tend to look particularly favourably on what we do in the UK. They often have a long list of criticism. And this particular rapporteur described it as world-leading and said that we were up there with a small handful of countries who had successfully reconciled the demands of security with the right to privacy. And I thought that was a very pleasing recommendation.

Lord Speaker:

One criticism I've heard over the years is that the communications between the different police forces is, some would say, unsatisfactory. And the number of police forces in England, is it 45 or whatever it is, that needs streamlined. What's your views on that argument?

Lord Anderson:

It's what no politician dares to say. But not being a politician, I will say it.

Yes, the 43 force model in England and Wales has long outlived its usefulness. You've seen that that's been bypassed in some respects, for example, counter-terrorism, to some extent organised crime. You've got the regional organised crime units, you've got the NCA. But it's still a source of massive inefficiency.

And as you rightly say, the police have not cracked data handling. It's a perennial problem. I think it's partly about money, but it's not just about money. And in a world which increasingly happens online, and in which crime also increasingly happens online, it's great to have neighbourhood police officers on the corner of the street, but you also need them on the internet to combat the online fraud and all the other interferences that we're seeing.

So I think that's a real challenge. And I don't think you're going to crack it by the 43 force model.

Lord Speaker:

My previous existence in the House of Commons, I was involved as an observer with the Proceeds of Crime Act and the City of London Police that oversees the financial sector. And it seemed to me there was a disparity between what they did, the City of London Police, and the police in the rest of the country.

Lord Anderson:

Yes. Well, the City of London is a very unusual force with its own proud independent traditions. But of course we've now got the National Crime Agency as well, which is, I think, still finding its feet but beginning to find them rather well. I have a niece who works there, so I mustn't say anything impolite about it.

Lord Speaker:

Well, should we go further in terms of integration in that?

Lord Anderson:

We could certainly integrate further at the force model, there's no question, at the force level, there's no question about that. I think counter-terrorism policing actually works very well. The structure was developed by Tony Blair after, if you remember, the London tube and bus attacks in 2005.

Lord Speaker:

I do, yeah.

Lord Anderson:

Again, the sense was this might be the beginning of something much, much bigger. Ian Blair, when he was commissioner, went on the radio in 2006 and said he thought we were going to lose more lives, more civilian lives to terrorism than we lost in World War Two. Well, I assume he was thinking of the 30,000 or 40,000 killed in the Blitz. Fortunately, that hasn't happened. We've lost a total of about a hundred lives in this country from Islamist terrorism this century. And I think that's a lot better than we thought it was going to be at the start of the century.

But we do have a policing model which is actually pretty well adapted to the terrorist threat. I think we can be pretty proud about how we've managed things over the last 20 years. Yes, there have been moments of panic, moments where media in particular have gone overboard. They've been seduced by these images of young men from London pretending to be medieval warriors with swords, all to capture the front page. But we didn't lose our heads. We introduced some strong laws, but where necessary we've pared them back again. And I think although it's certainly premature to say we've ridden out this particular episode in our history, I think we've got through it at least with our basic values and our basic rights pretty much intact.

Lord Speaker:

From your time as independent reviewer of terrorism, what's the main lesson that you learned there? And what's the message you will give to politicians and society for the future?

Lord Anderson:

Remember what terrorists want, they're not like other criminals, they want three things. They want revenge, they want renown, but above all they want reaction. And if you are foolish enough to overreact to what they are doing or to what they are threatening to do, then you are giving them exactly what they want. Because you are marginalising whatever suspect community they are trying to draw their support from. Whether 30 years ago that was Irish people, whether more recently it was Muslims. And you are polarising society into exactly the extremes that the terrorist would like you to believe that the world is all about.

You've got, and it's hard to do it sometimes, but you've got to retain the rule of law. And I think if I may say so, long before I joined it, the House of Lords took a very important role in this. It did not join the clamour to say, "Yes, let's allow the police to lock people up for 90 days before they're charged." It did not go in for the worst excesses of internment that we'd seen in the seventies-

Lord Speaker:

And it helped change the law on that.

Lord Anderson:

It helped change the law. They stood out against some things that were illiberal. And instead of having 90 days, we now have 14 days that the police are allowed to keep someone before they're charged.

I made a point of always asking senior police officers when I saw them, "Do you miss 28 days? Do you wish you had 90 days?" They always said no, 14 was enough. So it's so important to keep your balance. And I think in a way we were quite well-equipped to do that in this country because we'd had the experience of Northern Ireland. We did make some terrible mistakes in Northern Ireland. I mean, internment, you understand why it was introduced, hundreds of people being killed every year in the early seventies. But it still leaves a stain. It still plays a part in dissident Republican propaganda. And I think we learned something from that when 9/11 came along and we had a chance to react in a slightly more measured and mature way.

Lord Speaker:

Northern Ireland, I would say the view held is that that was a great success eventually because it brought the different political factions together and helped stabilise society. I presume that you agree with that?

Lord Anderson:

Absolutely, yes. And I credit, among others, Jonathan Powell, of course was Tony Blair's chief of staff. I've been lucky enough for the last five or six years to work in a small way with Jonathan who has taken his experience from the Good Friday Agreement, which he brokered, and applied it all over the world. So he's the chief executive of a peace-building NGO, which I chair.

And the peace deal was done in Colombia. Similarly in Mozambique, Spain - Eta, various other theatres where Jonathan and this charity have played a part. Most of them unfortunately you can't talk about, and many of them are still going on.

Lord Speaker:

Yeah, aspects of Northern Ireland he couldn't talk about as well.

Lord Anderson:

Indeed. But it is a very rare gift to broker an agreement like this. And of course you have to remember the agreement is not the end point. The agreement is usually only the beginning. We certainly saw that in Northern Ireland.

Lord Speaker:

The terrorism aspect about it, Jonathan Powell, whom we had the privilege of inviting along here, when he came, he was very open and he said, "Look, if any peace deal is going to be made, then you have to talk to terrorists themselves." Now that's a controversial subject and some people would never agree to that. What's your view?

Lord Anderson:

Well, he's entirely right about that. And as an organisation, one of the things we do is talk to people that governments couldn't talk to. And for that reason, some of our funding comes from western governments who see the value of us having conversations that they couldn't have themselves.

But there's always, if you think even about Russia-Ukraine, near the start of the invasion talks began on the agreement to let the grain ships out through the Black Sea. Now, that was not exactly the major issue in that conflict. Very far from it. But at least it was a channel of communication, at least it was personalities perhaps getting to know a little bit about each other.

So when the climate changes and talks in some respect become, perhaps wider respect, become possible, you have the basis for doing it. And I think there are very few conflicts worldwide, if any, where you couldn't apply the same principle.

And one thing that I think was very effective in Northern Ireland was the establishment of back channels whereby people couldn't talk officially to each other but could still find ways of signalling intentions and communicating indirectly before it was possible to meet.

Lord Speaker:

There's been quite a bit of discussion in society about the sovereignty of Parliament, particularly amongst politicians. Could you give us your views on that? And maybe tackle the issue of power, where does power lie in this country?

Lord Anderson:

Well, after the Factortame case, some people might've said the powers lie with the courts. If the courts can strike down acts of Parliament, then what's the point of Parliament? Now we're out of the EU now, so that's not going to happen again. And I'm glad we have a political constitution not a judicial constitution. I don't look with envy to the United States where the Supreme Court can strike down anything Congress can do. In this country we have the opposite. We've actually had a couple of bills through in the last 12 months which aim to reverse a decision that the Supreme Court has taken because Parliament decided that it took the right course. So I think in having a political constitution where Parliament is in charge, we've done the right thing.

Where I think the difficulty lies is in the relationship between the executive and Parliament. Now of course, we don't have a complete separation of powers in our system. The two have always worked closely together. But I think it was Gladstone who once said that our constitution more than any others presumes the good sense and the good faith of those who work it. And I'm not sure we've seen that uniformly over the last five or 10 years in particular.

And I'm thinking of things like these framework bills which they put through that don't really say anything, except that ministers shall have the power to make regulations to do largely what they want within perhaps certain very vague limitations. I'm looking at the power of the state to conclude international treaties where actually the House of Lords has through our new International Agreements Committee achieved a little bit of leverage. But considering the breadth of the subject matter of a modern international treaty, I think you could make an argument for Parliament being more involved.

So I think there are some adjustments to be made between the power of the executive and Parliament. And when you see the contempt that is shown by an executive that thinks it can prorogue Parliament, get it out of the way in order to do what it wants, and that really takes us back to the Stuart period, I thought that was an outrage. I'm glad the Supreme Court stopped it. I would've been even more glad if we could have stopped it in Parliament.

And in fact, one thing I was engaged in as a young peer recently arrived in this place was drafting a bill that would've achieved that. There wasn't time unfortunately to put it through at the time when we controlled our own order paper. But it's better I think for Parliament to sort these things out where it can rather than the courts.

Lord Speaker:

Our esteemed historian who's in here, Lord Peter Hennessy, has called it the 'good chaps theory' in the constitution. Are you a supporter of that?

Lord Anderson:

Yes, I think he was saying exactly what Gladstone was saying in 1879, that our constitution more than others presumes the good sense and the good faith of those who work it. And it's a very delicate balance. And if you display anything less than that, not just for Parliament but for judges or for the BBC or for the other institutions that collectively make up our democracy, then I think you're treading a very dangerous road.

It reminds me a bit of the City of London, we had Big Bang in 1986. Before that it was a place where your word was your bond. You probably were at school with a guy on the other side of the table, or at least you knew his reputation, and therefore great books of regulations were not necessary. And I think to some extent that is how our political settlement has worked for quite a long time.

What I think the last few years have shown us, and I hope it was just a Brexit phenomenon, but I'm not sure that it was, is that some of those assumptions about good behaviour can't necessarily last. And it may be, I hope we're not going to need books of regulations and government by regulator, it's a pretty dismal prospect, but I think there is more that we need to do about standards in public life. Not only to enforce them on people who overstep the mark, but also to give the people out there confidence that we do have a working and honest system of government. And I'm not sure that confidence at the moment is very high.

Lord Speaker:

What has led to that you think this dramatic fall in confidence?

Lord Anderson:

Well, I think ... it's easy, isn't it, to get on your high horse as a crossbencher who's never been elected to anything. You could say the root of it all was the financial crash of 2007, 2008 because this country hasn't really got very much richer since then and people aren't feeling any richer than they were. And I think with that sense of economic disadvantage comes the sense of being left behind, a sense of being disregarded. You look at very rich people flaunting their wealth, you look at politicians apparently being influenced by that. And it's very easy to fall into a corrosive cynicism that goes beyond the sense we're not being very well governed at the moment towards the sense that, well, actually nothing works at all. And then beyond that into the conspiracy theories that the whole thing is a pretense and capitalism stinks and we need to start again.

We're maybe halfway along that road. I'm not saying we haven't been there before. We've perhaps been there for example in the 1970s. I'm certainly not making a party political point. But it's dangerous. And if we are wise, we will adjust to that. And to my mind, standards in public life is the thing you have to fix first. If you don't do that, it's like putting water into a leaky bucket. You can have all the brilliant ideas for constitutional change and proportional representation or reforming the House of Lords or whatever you want to do. But if people don't feel that there is a basis to trust those who are taking decisions on their behalf, then it's a waste of time. So that's where I would start.

Lord Speaker:

And the Nolan Principles which were established in the 1990s, is that the foundation that we should build on?

Lord Anderson:

Yes, they're terrific. But you have the Committee on Standards in Public Life, which is the guardian of the Nolan Principles, coming up with-

Lord Speaker:

Lord Evans.

Lord Anderson:

Yes, Lord Evans, former director of MI5. So they're not a bunch of revolutionary firebrands. They came up with a series of very sensible recommendations, most of which the government hasn't implemented. I actually have a private member's bill at the moment which I hope might get a second reading later in this session. The point of which will be to put those proposals on the statute book. And it may be that if it doesn't happen that way, we'll have a government after the election that is prepared to look at that.

Lord Speaker:

I mentioned the good chaps theory and the unwritten constitution that we have. I presume you'll be a supporter of the unwritten constitution. But what could we do to ensure that our constitutional arrangements maybe are bedded further?

Lord Anderson:

Well, it's a great question. I actually wrote a piece recently called Writing a Constitution, but it didn't end up in favour of a codified constitution like most other countries have. What it did suggest is some strengthening of important things. And one thing was this question of standards in public life.

So for example, you have an independent advisor on ministerial interests who cannot initiate an investigation of their own initiative. They need to have the consent of the Prime Minister before they can do that. Well, if the investigation was going to be into the Prime Minister or someone who's politically close to the Prime Minister, it's hard to see how that is acceptable.

I think we need tightening of rules on lobbying, perhaps an offence of corruption in public life. So there's that whole side of things.

Then I think there's the question of parliamentary reform, which perhaps is a subject of its own. And then there's the question of constitutional watchdogs. We do have a constitution. It's written down in all sorts of different places. And I think it's absolutely right that it's not enforced by the judges. But should there be somebody with the authority to say, "This bill seems not to comply with our constitutional norms as they've evolved over many years."

We have the Constitution Committee in this House on which I'm privileged to sit. And we've actually just agreed to do something I think very significant and very exciting, which is to adopt a little code of all the principles that we have applied in our reports over the years, so that next time a bill comes along that we think is on constitutionally dangerous territory, instead of just saying, "We think this might be constitutionally dangerous." We can say, "We think chapter 5.5 of the code may be infringed by this provision and the House might want to have a careful look at it."

So it's to provide a sort of institutional memory of the things that are important in our constitution. And it's to focus a bit of attention, rather as the Joint Committee on Human Rights has the Human Rights Convention that it can apply and refer to, I think its reports are very influential in this House and in the other place. Similarly, I think if we had a constitutional code or a code of constitutional principles for use in legislation, then that would help actors in the constitutional drama. And I think it would also help inform the public, people who are interested in knowing more about our constitution, but find it very difficult to see what it's all about because it's not written down in one place, might find that easier as well.

Lord Speaker:

Some would say abolishing the House of Lords is the way to having better governance. But do you subscribe to the view that if we abolish the House of Lords, that's just one aspect that should be reworked in terms of governance? I remember Lord Sedwill, former Cabinet Secretary, making a point that the governance overall has to be looked at, whether it's a civil service, whether it's Parliament, the executive, whether it's a relationship in devolution with the rest of the country.

Lord Anderson:

Yes, that's not an excuse for doing nothing. And there are certainly things that I would do if I had the chance to reform the House of Lords. But in terms of do we need a second chamber? I rather like what Meg Russell had to say about this. She said second chambers mean second thoughts. And if you like evidence-based policymaking, you like them. And she points to I think more than 80 countries in the world that have second chambers. About half of those incidentally aren't fully elected. Although most of them have an elected component.

And I think what we bring is the advantage of time, where if something has been rashly inserted into a bill as it goes through the Commons, we can take time to sort it out. And we bring expertise. And actually we have some political weight of our own. I'm not one of those who thinks it's all about the Crossbenchers, far from it. I think it's important to have Crossbenchers in the House for the particular qualities that hopefully we bring. But I think it's often the big political beasts who give what we say some real force.

And if someone like Michael Howard, a past leader of the Conservative Party, perhaps a future leader, but certainly a past leader, stands up in a debate on a government bill and says, "I don't think this bill should be threatening to break our international agreements in the way that it is." Then that has far more cut through than if it was said by a lawyer or even a senior retired judge.

In terms of the reform of House of Lords, you mentioned you have your own views, can you share them with us. But also in the wider context about governance in the country, what would you recommend there? So both the House of Lords and the rest of the government machine.

Well, I would love to see, and I don't know how you do it, but I would love to see a House of Commons that was more serious about its part in legislative scrutiny. As it seems to me, if you're a member of Parliament, your incentives are very much to stay close to your constituents. And absolutely right, you are representing them and you are looking for them to re-elect you someday. And your other incentive is to be loyal to the party of which you're a member. Because if you're ambitious, you want to rise in that party. And neither of those incentives really align to doing the legislative scrutiny, which it's really a large part of what Parliament is there for. And as a consequence, we are having to do that ourselves.

Now, I would love to find a way of changing the incentives in the Commons. To some extent it's been done by the select committee system and by the election of select committee chairs, which I think does give some MPs an alternative route. But for the time being, I would say that the scrutiny we provide is essential.

Lord Speaker:

In 2018, you applied to become a member of the House of Lords as a crossbencher, and you went through the House of Lords Appointments Committee. Why did you decide to apply? And what did you think you would bring to the House of Lords?

Lord Anderson:

Well, it had never crossed my mind, but it was my experience really as independent reviewer, giving evidence to parliamentary committees, listening to debates where they were debating proposals that I'd been involved with, and just seeing what a wonderful careful job the House of Lords did, whether it was on the Justice and Security Act 2013, Investigative Powers Act 2016. And I was encouraged, I didn't know there was still a people's peers scheme whereby you could simply apply with a CV and six referees. But an existing member of the House told me I could do that and encouraged me to do it. And so I did and I've never regretted it.

Lord Speaker:

And what have you gained from being a member of the House of Lords?

Lord Anderson:

I've gained everything. I started as a lawyer. And lawyers certainly in the sort of area where I practised, if they're not careful, they can become quite narrow. You get used to following instructions from your client, you make submissions, you never express your view to the court, you make submissions based on the evidence, based on the decisions of higher courts. And you can have a very agreeable life without really poking your head very far above the parapet at all.

And what I saw first of all with the independent reviewer job, and then more recently with the House of Lords, is that it is a very exciting world out there. There's a variety of people to meet that I wouldn't have met probably in my old profession. Arguments don't just happen on the day that's been appointed for them three months in advance. And they're not always decided by fully rational judges who if you don't like the judgement can be appealed to an even more rational appellate body. Political arguments blow up out of nowhere on a Sunday afternoon. And sometimes you need to be on the radio and expressing a view. And I find that intriguing and important and ultimately more satisfying, possibly even more useful than the practise of law.

Lord Speaker:

If you were to address a citizen's assembly, and the question was abolish the House of Lords, given your skills as an advocate, how would you win the argument?

Lord Anderson:

Well, I'd win it by going for change. And I'm afraid I would make some big changes. I cannot see a principled argument for retaining a quota for people who are hereditary peers. It's difficult for us to say this because you and I know how good some of the hereditary peers are. But I always think, well, if they're that good, then there will be a way of getting into the House of Lords through a more meritocratic route.

The political cronyism, again, simply has to stop. It cannot be the case that by dint of giving £3 million to a political party, you can secure a place in the House of Lords. If it's not corrupt, it's as near to corrupt as makes no difference. And it's a terribly bad thing for our image.

So I think what I would try and do with a citizen's assembly, I'd point to what some people call our output legitimacy, I'd point, in other words, to all the great work that we do, the culture of justification that we represent, the questioning, the probing, not taking things at face value. And saying it's important that that continues.

You could look at this country like a family, and in the House of Commons you have parents who tell young children what to do. But if the parents are wise, they will sometimes take advice from grandparents. And it seems to me that's what we represent in the House of Lords. We don't have the power, but we have influence. And if people have good sense, they will listen to us.

Lord Speaker:

Well, thank you very much for that. That was replete with wisdom, experience, and honesty. I'm grateful for you to that. And I wish you well in your future work in the House of Lords, but also as you work in the legal area. Thank you very much.

Lord Anderson:

Thank you very much.

 

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