The three speeches/headings immediately before

1. 1 earlier: John Hemming

   In arguing for the repeal of the 1998 Act, is the right hon. and learned Gentleman also arguing that individuals in this country should have no right of appeal to the European Court in Strasbourg?

2. 2 earlier: Michael Howard

   I am always happy to accept endorsement of my views from such a distinguished source. I, too, pay tribute to my right hon. Friend the Leader of the Opposition for doing me the courtesy of being in his place at the moment.

   The difficulties to which Lord Irvine referred have, of course, been exacerbated by the Human Rights Act 1998, for which he himself had direct and personal responsibility; political life is full of little ironies like that. To be fair to the judges, they cannot be blamed for this further increase in the power that they now wield-it is power that has been thrust upon them by Parliament at the behest of Lord Irvine, among others. How does this arise? In a nutshell, the Human Rights Act requires our courts to apply the European convention on human rights in every decision they make. The convention was drawn up in the aftermath of the second world war; its authors saw it as a safeguard against any revival of Nazism or any other form of totalitarian tyranny. However, the rights that it seeks to protect are framed in very wide terms. I suspect that many of its authors would turn in their grave if they were able to see the kind of cases that are being brought in reliance on it today.

   The point about these rights is that none of them can be exercised in isolation. Any decision to uphold one right may well infringe someone else's right, or it may conflict with the rights of the community at large. What has to be done, therefore, is to carry out a balancing exercise in respect of these competing rights. Perhaps the most acute manifestation of this conflict arises when it comes to questions of national security and the difficulty of striking the right balance between security and liberty. Indeed, my right hon. Friend the Leader of the Opposition has spoken about precisely that challenge. The challenge of getting the balance right between these fundamental considerations is one of the most serious and controversial issues that society faces in the globalised world of the 21st century.

   The fundamental question is who will be ultimately responsible for striking that balance: elected Members of Parliament or unelected judges? In the cases on terrorism, Parliament twice, after much anxious consideration by both Houses, reached its view. It was not always a view with which I agreed, but it was the view of elected Members of Parliament who could be held to account for it. Yet twice the judges have held that Parliament got the balance wrong; they thought that the balance should be struck differently. In doing so, let it be said that they were not deliberately seeking to challenge the supremacy of Parliament, but simply doing what Parliament had asked them to do. The question is this: should Parliament have asked them to do it? That is a serious question. It will be apparent from what I have said thus far that I believe that the answer is in the negative. I entirely appreciate that others may take a different view, but what I find particularly disappointing is their failure to engage with this crucial argument.

   The latest example of that failure is to be seen in the recent speech of the Director of Public Prosecutions. After listing the rights set out in the convention, he said:

   "The idea that these human rights should somehow stop in the English Channel is odd and, frankly, impossible to defend."

   Of course I agree with that statement-I would not dream of defending the ridiculous proposition that he has articulated in order to destroy it. However, to suggest that that is the issue of concern to those of us who are opposed to the Act is nothing short of infantilising the argument. What those on the other side of the argument from me need to do is justify the transfer of decision making on the balancing of competing rights from elected politicians to unelected judges, but the DPP made no attempt to address that central issue.

3. 3 earlier: Denis MacShane

   I am listening to the right hon. and learned Gentleman's speech with great interest, and I am sorry that there are not more right hon. and hon. Members here to hear it. May I pay sincere tribute to the courtesy that the Leader of the Opposition is showing by being in his place for this part of the debate? The right hon. and learned Gentleman criticises judges. Does he remember Michael Foot saying in the 1970s that if we left it up to the judges there would be precious few liberties in Britain? Is he becoming a secret Michael Foot in his last months in Parliament?