I beg to move,
That this House
notes with concern the impact of the European Convention on Human Rights on the sentencing powers of the Home Secretary and in other respects;
further notes that the Government has not so far made any defining statement about its intentions relating to the impact of the European Convention on Human Rights;
and calls upon the Government to work with all political parties which are represented in the House in order to construct a lasting settlement that can bring the Human Rights Act 1998 into conformity with the democratic will of the people and the concepts of liberty that have served this country so well for so long.
Our intention is to try to enable a debate to take place on the way in which the Human Rights Act 1998 currently influences our daily lives and affects the working of Parliament.
XWe are entering a new age of constitutionalism for public lawyers. Bliss it is in this age to be alive, and to be young must be the very heaven."
The bliss has not reached me in any material form since incorporation, but nevertheless I declare an interest as a barrister.
The Government and the House may recollect the extensive debates in the Chamber at the time of incorporation. Insofar as I participated in them, it was as a broad supporter of the principle of incorporation, as the Minister may be aware. I spoke in support of it for a number of reasons. I saw many advantages to the possibility of judicial input by English judges into the decision-making process of the jurisprudence that was being built up. I also saw the possibility of the much greater use of the margin of appreciation through the basic facts of cases being decided here and the opportunity that that would afford for our courts to be seized of matters that might otherwise end up in Strasbourg. There had been frequent complaints that the Strasbourg judges had great difficulty in grasping our customs or the background to particular cases from this country. In that context, I saw incorporation as an enormous advantage for the English judiciary.
It is clear that in a number of decided cases, incorporation has brought about real benefits. Some have been contentious, but one can understand how the dialogue between the judiciary and the Executive has sometimes led to interesting results. At one time, there was no possibility of a child born of artificial insemination knowing the identity of his biological father. That was challenged under article 8 and has been changed. The policy that a prisoner should not be present when prison officers examined legally privileged correspondence was also held to be wrong under article 8. I cite that because I accept that those are examples of a dynamic relationship that may produce better law and enhance human rights.
Some of the decisions have come as a surprise. My constituents were relying heavily on the possibility that a challenge to section 172 of the Road Traffic Act 1988 would enable them to get away with not disclosing their identity when they were caught by speed cameras. The European Court of Human Rights held that the measure was proportional to what the Government intended. If litigation continues, the Court may find that there is a right to administer corporal punishment in private schools if the parent has authorised the teacher to carry it out. So Government policy on some matters may be challenged.
I accept that the courts have not been flooded with decisions. The evidence shows that, despite early prognostications that a massive flood would paralyse the court of criminal appeal, it has not happened. Having been saddled with the responsibility, the judiciary appears to be able to deal with it without the courts grinding to a halt.
Before the hon. Gentleman gets deep into his contribution, will he clarify the depth of his support for incorporation? I recall that, during the passage of the Human Rights Bill, he condemned incorporation because it removed the right of Parliament to introduce capital punishment. He was quoted as saying:
XWe are usurping the rights of citizens of this country to pronounce on this issue and we are doing it for no good reason."
Just how committed is he to the legislation?
In that case, the hon. Lady may be badly briefed by The Daily Telegraph. If she reads Hansard, she will find that, in Committee, I argued against a decision taken by Back Benchers to fetter the ability of Parliament to discuss the issue of capital punishment. I explained that it was not in the Government's original Bill. Indeed, the Home Secretary resisted it in the Chamber and said that he thought it a bad move. I explained to the House—I could quote verbatim because I have reread what I said—that I was against capital punishment, which remains my view, and would not vote for its reintroduction. I also said that the House was making a grave and unnecessary mistake that would irritate public opinion. From my mailbag afterwards, I concluded that there was indeed some irritation of public opinion on something that was unnecessary for incorporation and that the Government did not intend. I hope that that deals with the hon. Lady's point. In future, she should rely on Hansard rather than on newspaper cuttings.
My hon. and learned Friend is right. I explained that my principal concern was that I did not like the Henry VIII clause, which was why I did not vote in favour of the legislation. That clause went against the central principle of Parliament's involvement in the human rights process. If there is a basic theme, it is precisely that.
The Minister will be aware that Lord Woolf, the Lord Chief Justice, gave a lecture to the British Academy on
Xalready obvious that the result will be changes, significant changes, to our constitutional arrangements . . . What is the primary concern of the Human Rights Act is not so much rights in the ordinary common law sense, but values."
That is what the House must address. As we have watched the Human Rights Act develop, we have seen examples that have been tweakings of the law. However, we now have to deal with a series of matters that have come into the public focus that relate to fundamental issues about the role of Parliament in decision making, as against that of the judiciary, and to how the Executive should respond.
The hon. Gentleman quotes the recent lecture by the Lord Chief Justice. We read reports of that and I have a full copy with me. Will he remind the House of the Lord Chief Justice's conclusion on whether he supported the Human Rights Act? If the interpretation of his comments is right, will the hon. Gentleman confirm that not only the Lord Chief Justice but all the senior judges support incorporation and believe that the present position is defensible, right and constitutionally proper?
The hon. Gentleman is right and I read the text of the address, which was extremely interesting.
Moreover, I do not necessarily disagree with that position. What interests me, and what has provoked this debate, is the role of Parliament in this process, especially in light of the Government's comments—to which I shall turn in a moment—about where they appear now to see the limits of the Human Rights Act and where they would see fit to intervene to override it if necessary. That is the matter that I seek to bring to the attention of the House and to have debated this evening.
The first issue is sentencing tariffs for mandatory life sentences. The newspapers are full of the matter, and it is time that the House paid attention to the principles underlying it. The House will be aware that, as matters stand, it is highly likely that the Home Secretary's discretion in this matter will be abolished, and of course there will be some who welcome that. Indeed, my right hon. and learned Friend Mr. Hogg has tabled an amendment to the motion which perfectly properly sets out his own deeply held view, which I have known for a long time, that it is high time that the discretion was abolished. That is a legitimate subject for debate.
We face a situation in which a principle that was clearly enunciated when capital punishment was abolished may be overturned. As I indicated to the Minister, I would have supported the abolition of capital punishment if I had been in the House in the 1960s, and I certainly would not vote for its reintroduction today. When it was abolished, the Home Secretary gave a series of categorical assurances about how he would continue to exercise discretion in respect of mandatory life sentences. He put that firmly on a public policy basis, arising from the need to reassure the public, tempered of course by the role of the parole board and, as we would now have it, by potential judicial review.
That position prevailed until 1983 when, as the Minister knows, the tariff policy was announced in Parliament. The tariff was no longer a secret matter, and by 1991 it was being communicated to the person in prison and arrived at after consultation with the trial judge and the Lord Chief Justice, acting, of course, on the recommendation of the parole board.
We have to face the fact that that principle is now being challenged. The European Court of Human Rights accepted it, apparently without difficulty, in the case of Wynne in 1994. However, the Wynne principle seems to be fast disappearing as the legal foundation on which the European Court is likely to act, and, moreover, on which our domestic courts are acting. In the case of Stafford, the European Court disregarded Wynne.
The facts in that case were odd because there was no doubt that the position of Mr. Stafford, who had been released on licence and then re-imprisoned for non-violent offences with his licence revoked, was unusual. Nevertheless, the Government were certainly not saying that they thought it wrong that the Home Secretary should have that power, because although the decision was made by the Home Secretary of the Conservative Government, it was endorsed by the incoming Labour Home Secretary, Mr. Straw. He adopted and argued that case, and it was thrown out.
Now we have the Anderson case, which is before the House of Lords and goes much further. If there is a decision, and there is much commentary to support the view that the way in which the European convention on human rights operates would incline the Court to overturn the Home Secretary's discretion, there will be a challenge to the Executive's discretion as exercised by the Home Secretary, and that will apparently be wholly contrary to the Home Secretary's views and principles on this matter. That raises important issues.
After the Stafford ruling, the Home Secretary said:
XI am concerned that this judgement may serve as encouragement for those who would like to remove the Home Secretary's powers to set tariffs for adult murderers. If this judgement were to be used to support a legal process to achieve this, I would seek to use domestic legislation to enshrine the power of Parliament to provide adequate punishment for the guilty."
Indeed, the Home Secretary went further and said:
XWe will study today's judgement in detail. My overarching priority will remain protecting the public from dangerous offenders, while doing everything we can do to assist and support victims and their families. It is crucial that jurisprudence does not interfere with this basic right on behalf of the elected government."
Of course, the consequences of such a decision would be profound. There are some 260 murderers in prison whose tariffs fixed by the Home Secretary are no longer than those recommended by the judges. There are between 60 and 70—I do not have the precise figure—who have already served longer than the judge's recommendation. There are 23 people on whole-life tariffs who may be subject to review, including some of those who have been sentenced for the most horrific crimes, which have excited serious public disquiet. There are also some 1,300 people in prison who would be likely to apply to the parole board for review. The Home Secretary has apparently nailed his colours firmly to the mast and said that he would not tolerate that.
That is not the only example of the Home Secretary setting out his position. There is also the matter of the Special Immigration Appeals Commission hearings and the Home Secretary's attitude to the right to detain potential terrorists who have been refused asylum in this country but are allowed to remain because, not surprisingly, there is no third country to which to deport them. Initially, the Government's claim was turned down on the fascinating ground that the Home Secretary could not discriminate between nationals and non-nationals. On Friday, that judgment was reversed.
Although the reversal is useful and interesting, and its terms make it clear that, in a national emergency, there can be discrimination between nationals and non-nationals, it expressly does not deal with the question of what would happen if there were no national emergency. I do not know what the Government's position is on that point, and I hope that we will hear more from the Minister about that. The Home Secretary made clear in the House his concern about the fettering of his discretion in that way, and I certainly did not understand it to be confined to issues of national emergency.
That is a second example of a case that may well end up in Strasbourg in which the Executive, in the person of the Home Secretary, have expressed the gravest concerns about the judicial interpretation of the Human Rights Act. However, there is no point in blaming the judiciary; it is only doing its job. The question for the House is what limits it wants to impose on that judicial discretion and at what point it wants to reassert itself, either to back the Executive in seeking to override such decisions or—and this option is open to it—to tell the Home Secretary that it will not back the Executive.
The hon. Gentleman knows very well that before incorporation we were signatories to the convention, and that the remedy was to go through all the courts in this country and then to Strasbourg. Does he agree that the same applies now? Even if Parliament were to pass, or hold to, a law that offended the convention, and the European Court of Human Rights found against it, we would have to change the law or be in breach of the convention. So far, we have always changed the law because we have never been willing to argue that others should obey the law when we do not do so.
The hon. Gentleman makes a reasonable point and, as I tried to explain to the House earlier, one of the reasons that I argued in favour of incorporation when the House debated it several years ago was that those decisions might eventually be made. There are two riders to that. One is the number of cases likely to get to Strasbourg, and therefore the change in the volume. The second point, which we cannot ignore, is the extent to which some of the jurisprudence and some of the principles that have been enunciated are home-grown. After all, in the Anderson case, the Court of Appeal was the forum that said that the Wynne case in the European Court of Human Rights appeared to be flawed and should no longer be followed, even though the Court of Appeal felt that it was not its job to interfere with the Executive's discretion in that case. That is an example of the much more dynamic relationship between our own judiciary and the Executive.
Although I accept the hon. Gentleman's point that, eventually, the same decision could be arrived at, we need only look at what has happened over the past six months to see that the volume and intensity of the challenges are growing. That is why I believe the House should consider the matter. I assume that the Home Secretary's position would be identical in respect of tariffs for life sentences if the case were taken directly to Strasbourg.
A very interesting question. Eventually, irrespective of what the House does, it is possible for the case to end up in Strasbourg, and the Government are faced with a number of ways of dealing with it.
Is it not the case that as soon as we sign such a convention, if we do so in good faith, we are effectively saying that we trust the convention and the international community more than our own democratic system? The purpose of signing such a convention is to fetter the discretion of our elected Ministers. Is not my hon. Friend's argument really against the idea of signing a convention, if he is a strong supporter of democratic decision?
My right hon. Friend makes a perfectly good point. It is possible for the House and the Government to find themselves in conflict with the interpretation of the convention by the European Court of Human Rights. [Interruption.] My right hon. Friend says that that is inevitable. I am never quite sure about inevitability, and of course there are mechanisms available for the Government to derogate under certain circumstances, if they believe that it is necessary to do so. That is precisely why this evening's debate seems so important.
Given the Home Secretary's repeated assertions that he will not be budged on tariff life sentences or the Special Immigration Appeals Commission because he believes that he has a duty to the public that it is important that he discharge, I should like to hear how the Minister reconciles that with the point raised by my right hon. Friend, and how she explains the Govt's position on the matter.
I am afraid that I disagree entirely with the hon. and learned Lady. Human Rights Act points are being taken every day in the courts, so we cannot say that matters are sub judice on the Human Rights Act, or we would not be able to discuss its generality at all. The matter is extremely topical. After all, the Home Secretary could have said nothing. He could have said, in respect of the tariff for mandatory life sentence prisoners, XI will wait upon events", but he did not. He made the choice to come out with a series of public pronouncements that put him on a direct path of potential conflict with the judiciary, judicial decisions and ultimately, potentially, with the European Court of Human Rights. There is a very legitimate subject to debate.
The hon. and learned Lady might have a persuasive point if the Home Secretary had said nothing. Then she could argue that we should wait and see what happens, but it is the Government who are briefing the press about the Home Secretary's position and the Home Secretary who is going on television and radio to say how he stands on the matter, and we would like an explanation of how the Government view it in principle and in practice.
The debate is premature, because the possibility cannot be excluded that, if the Home Secretary lost now and the case as to his powers to set a tariff went to Strasbourg, it is conceivable—not very likely, but conceivable—that the court in Strasbourg would find that it was within our margin of appreciation in implementing the Human Rights Act, so the issue would simply never arise. Why should we speak about theories, when there is no practical purpose to be served?
I am afraid that I disagree entirely with the hon. and learned Lady. The matter has arisen, and it is a matter of which the House should be seized. Are we to say that when the Home Secretary comes out with a series of public pronouncements—made, some might suggest, probably unkindly, for political advantage—the House should not debate the implications, in the light of the Government's stated approach to the operation of the Human Rights Act and its incorporation into our law?
There are other aspects that we need to examine. It is interesting, because it is directly linked to the situation in respect of tariff life sentences, that there has been another decision by the European Court of Human Rights in the case of Ezeh and Connors, which effectively said that early release for prisoners, as previously enshrined as a matter of mercy, and possibly of administrative convenience and practice, has been turned into a right under English law. The result is that, as the Minister will know, prison governors can no longer award lost remission, because it is no longer thought to be a remission period; it is not supposed to be part of the sentence at all.
I have had several letters—I do not know whether my hon. Friends have received similar correspondence—arguing that the sentencing system in this country, from mandatory life sentences for murders through to the tariff and period served by other criminals in prison, has become a fantasy world. That is a direct consequence of the working of the European convention on human rights. What is the Government's view on that? Do they welcome it? If so, will we move towards a system that would appeal to my right hon. and learned Friend the Member for Sleaford and North Hykeham, with a determinate sentence for murderers or different categories of murderer? Or will we move towards a situation that was highlighted briefly in the XJustice for All" White Paper, with the judge imposing some different sentencing regime, where the period that one gets is the period that one serves? The Government need to respond to these issues, which are the direct consequences of the operation of the convention and its incorporation into our law.
Why has the Home Secretary chosen to dig his trench on the issue of adult murderers' mandatory life sentences? He opposed the ending of his discretion in the case of juveniles in the Thompson and Venables case, but he did not challenge it. I appreciate that there are distinctions, but it would be interesting to hear from the Minister this evening why the Government accepted that, even though they opposed it and argued against it in court, yet nailed their colours to the mast over adults. I should be grateful to hear how that distinction was arrived at. It is an important one, which the House should know about.
In addition, we must face the fact that there are some opposite effects of incorporation. For example, every piece of legislation coming before us now has that famous imprimatur that it is human rights compliant. As the Minister knows, that is merely a mantra that seems to be recited ad nauseam. Often, it does not appear to bear much relation to the legislation that we pass. Simon Hughes will know that when we discussed the Proceeds of Crime Bill serious reservations were expressed about whether the process of civil confiscation is Human Rights Act complaint. The Executive seem not to be in the least bit concerned about that issue.
Almost daily we see massive impacts on the freedom of the citizen. During the weekend—I was struck because I had previously missed the point—I found that teachers being vetted have to give their bank account number and the maiden name of their mother, which is the usual device by which banks check people's identity. Apparently, the data are being processed abroad. The procedure was introduced with the laudable aim of preventing paedophiles and sex offenders from moving into the teaching profession.
There was not a squeak from the Government about human rights implications. Presumably, it suits the Executive's decision-making process that such checks should be introduced, but I think that they constitute a massive intrusion into personal freedoms. That brings me—I hope that the Minister will listen—to the nub of the issue: the role of Parliament in the process that I have described. I do not know whether she has bothered to read what was said at the time of the incorporation of the Human Rights Act, including what I said. However, I made it clear—I still believe in this passionately—that if the Act is to work, Parliament's involvement in the process must be constant and frequent.
The Joint Committee on Human Rights does extremely good work but that is not what I would see as frequent parliamentary involvement in the process. The Government should have initiated debate on certain matters a long time ago, including on tariff life sentences. It was clear that the Home Secretary had a view that might well be challenged and found to be unsustainable.
We have had an extraordinary paradigm shift in the way in which we run our affairs. Some might argue that that is for the better. However, it involves a dialogue between the Executive and the judiciary, from which Parliament is effectively excluded. I have serious doubts about that process. As the dialogue continues, there is a danger that the process of justice, Parliament and the Executive will be brought into disrepute with the public. We have only to see how the public respond to the news about some of these matters. In my opinion, many people are deeply concerned about—this is how they see it—their rights disappearing down the plughole, with parliamentary scrutiny lessened and the judiciary intervening in cases where frequently the public cannot see that a human right is being infringed.
In the Simms case, Lord Hoffman said:
XParliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights . . . But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost."
Surely the issue before the House is that there are compelling examples where it would appear that the Government do not feel that they have done anything contrary to human rights, but, undoubtedly, we as a House are not squarely confronting the issues before us. That is why it is important that the matter should be debated.
I beg to move, To leave out from XHouse" to the end of the Question, and to add instead thereof:
Xnotes that the Human Rights Act 1998 is fully in conformity with parliamentary sovereignty, which enables Parliament to reflect the democratic will of the people;
and further notes that the Human Rights Act enshrines the concepts of liberty that have served this country so well for so long."
I welcome Mr. Grieve to his role in opening the debate. Given that this is the Opposition's debate, I am rather surprised that Mr. Letwin, the shadow Home Secretary, did not choose to open it himself. I am surprised not least because the hon. Member for Beaconsfield so faithfully reproduced his right hon. Friend's thesis as outlined in various media outlets and written pamphlets recently from which it is plain that this is a subject dear to his heart. I think my hon. and learned Friend Vera Baird put her finger on it. I suspect that the right hon. Gentleman did not open the debate because his plan to put the Government on the spot, as he saw it, has failed. I think that he was expecting the Court of Appeal last Friday to find against the Government on whether our anti-terrorism detention measures were discriminatory. So confident was he that he put out a press release the day before offering to help the Government sort out what he called the problems with the European Court of Human Rights.
The right hon. Gentleman then sought this debate. Unfortunately for him, the Court of Appeal found unanimously in the Government's favour on all counts. The right hon. Gentleman having hoped to put the Government on the spot, I have sympathy for the hon. Member for Beaconsfield, who consequently found himself in a bit of a spot. That is why he made the contribution that he did: there was nothing much left to say.
Given that the Opposition selected this topic for debate, we might at least have expected the hon. Member for Beaconsfield to enlighten us on the Opposition's policy on the European Court of Human Rights and the Human Rights Act 1998. Instead, the only thing that is clear is that they are not clear. When speaking about these matters on XToday" a week ago, the right hon. Member for West Dorset admitted:
XI don't myself yet have a clear view."
One week further on, I do not think that it is any clearer. However, I am grateful for the opportunity to sort out some of the Opposition's misconceptions about the ECHR and the Human Rights Act, and to deal with some of their errors.
I wonder whether the Minister thinks that there are times in our political history when there are issues that arise and politicians, although they may not immediately know the answer, have the feeling that there are questions that need to be discussed, or whether she thinks that that is an impossible conjunction?
Not at all. I do think that politicians have a duty to stimulate debate on important matters even though they may not fully have resolved what the issues may be. However, I should have thought that they would have a reasonably clear idea of where they stood on some of the principles. What we heard from the hon. Member for Beaconsfield leaves us in a complete fog as to where his party stands and the course of action that it is proposing as a result of the dilemmas that he has outlined tonight and the right hon. Member for West Dorset has outlined in his pamphlet.
I must point out to the Minister that she is in government. It would be nice to hear from her the Government's position on the matters to which I referred. It is the Government who usually lead on these matters. The hon. Lady knows that in respect of the Special Immigration Appeals Commission—and on tariff life sentences—we indicated clearly that we fully understood the Government's position. I do not understand what the hon. Lady is getting at.
The Opposition may have said that they understood the Government's position on detention measures and SIAC, but they did not agree with them. I shall try to take up that point in attempting to unravel the Opposition's motives and the course of action that they really want to propose—I suspect that they are fearful of doing so—in relation to the ECHR and the Human Rights Act.
At the moment, we are not sure whether the Opposition support the ECHR and the HRA or are against them. Half the time, they seem to think the ECHR is bad, while the rest of the time, they think it is good. That may reflect the fact that they are divided on so many issues. Indeed, we have heard different propositions from different Opposition Members. Their official spokespeople wished the Human Rights Bill well on Third Reading and in the other place, but they talked a few months later of repealing the legislation. A year ago, their leader told the Prime Minister that the ECHR was Xan obstacle". Last week, the right hon. Member for West Dorset seemed to think that the Human Rights Act was all that stood between an over-mighty Government and our traditional liberties. He practically cheered the judges on, but this week, his party kneels at the shrine of the democratic will of the people. One wonders where it will be next week.
I should like now to deal with one of the central aspects of the Opposition's position, which is also one of the fundamental flaws in their argument: the proposition that there is a choice to be made between democracy and human rights.
I should like to ask a question before the Minister leaves the subject of great court victories won by the Home Secretary. Is she aware that in October last year, he won a great victory when Shafiq ur Rehman, a gentleman whom he had been trying for five years to deport—obviously, the process cost a lot of money—lost his appeal to the House of Lords? Will she explain why the Home Office miraculously turned around 10 days later and said that he could stay?
I shall not be distracted into dealing with a particular case. I should like to deal with some of the fundamental principles that the Opposition say they are raising. Their premise is that there is a choice to be made between democracy and human rights, but in our view, there is no such choice, as they go hand in hand. Respect for human rights is surely one of the hallmarks of democracy and a parliamentary system, because it shows that society values every individual person.
Reference has been made to the well-reported speech made by the Lord Chief Justice the other week, in which he said that human rights came with true democracy, whether Governments wanted them or not. He could have added that that was the case whether Oppositions wanted them or not. He referred also to the words of another senior judge, who summed up the relationship between human rights and democracy by saying that human rights were not a substitute for the processes of democratic government, but a complement to them. We certainly strongly subscribe to that view and I would have thought that we could all agree on it.
I have not yet given way, but I shall do so now.
I am delighted; I am touched by the hon. Lady's generous effort. The choice between democracy and human rights is crucial and relates to the amendments as well as the motion. She says that no such choice has to be made. In that case, why did the Home Secretary recently refer to the need to change the Human Rights Act in order to achieve conformity with what he thinks will be the democratic will of Parliament?
I do not think the Home Secretary has proposed to change the Human Rights Act himself. In relation to some of the cases raised by the hon. Member for Beaconsfield—I refer to the Anderson case in particular—he referred to the need to preserve the view of the House about the role of Parliament in determining policy on punishment, especially with regard to murders. We cannot anticipate the judgment, but if necessary, we will use domestic legislation to preserve that position. That is the point that hon. Gentleman made. [Interruption.] That does not involve a choice between the two very important cornerstones of our society—human rights and democracy—in relation to any one issue.
It is astonishing that the Conservatives find that issue so hard to contemplate. I want to deal with it later, but as they are finding it so hard to understand, I shall also rehearse it a little now. In any mature democracy, the extent to which human rights, parliamentary sovereignty and the democratic will of the people have to be negotiated around each other is part and parcel of modern life. That is part of a mature democracy and the constitutional settlement that we accepted when we helped to draw up the European convention on human rights. It is clear that Opposition Members cannot carry in their heads the idea that those issues cannot be reduced to simple edicts and are not one-dimensional. We are here to deal with the extent to which human rights, sovereignty and democracy have to be worked out in a democratic system.
I am grateful to the hon. Lady for giving way; she has been patient and has hence contributed to the debate. I do not seek simplicities. Does she recognise that there are times when the democratic will and the convention as it is interpreted by the judges may come into conflict? She appears to do so, as she refers to negotiation. In that case, who is to prevail in the negotiation and by what mechanism and against which criteria will they do so? That is our question.
As the right hon. Gentleman knows, those issues are not new. For 50 years, we have been considering the extent to which human rights butt up against parliamentary decisions and the laws of this country. What Governments of every complexion have had to do in that situation has already been mentioned by Simon Hughes. They have to consider whether their obligations to the international community and international law should prevail. So far, those are the decisions that Governments of every hue have decided are important. Those are the issues that any Government face. What we are getting down to is what the Conservative party is thinking about as a solution to some of those dilemmas, but perhaps does not dare mention.
Will the hon. Lady confirm that it is the Government's view that if an ECHR ruling found against the UK Government, they would accept that judgment, as all their predecessors since we ratified the treaty—we were the first country to do so—would have done and amend the law accordingly? Therefore, if the Home Secretary were found not to be permitted by the convention to set tariffs for adult life sentence prisoners or others, the Government would accept the ruling and the judgment that such sentences should be set by the courts and not Ministers of the Crown?
I can say that we have no intention of reneging on our obligations under international law or of pulling out of our commitments to working with other countries on all those issues and being part of the family that subscribes to the convention. Indeed, major changes to our law have followed as a result of decisions of the sort to which the hon. Gentleman refers. The judgments were not always convenient at the time, but in the end, all Governments, whatever their hue, have put the rule of law above political considerations. I repeat that that is what a mature constitutional democracy is all about.
I listened carefully to hear whether the Opposition would commit themselves to denouncing the whole ECHR as is technically possible. Is that their real agenda? That would be something when all Europe—west and east—accepts the ECHR, inconvenient though its outcomes may sometimes be, as the bottom line of civilised behaviour. The Human Rights Act does not change the ECHR or our international legal obligations under the treaty in any way. It does not change one word of convention rights, but allows us to enforce those basic rights in our courts rather than having to pursue them in Strasbourg.
I shall finish this point first, because I have been fairly generous in giving way.
The Act is primarily about access to justice in our own courts. Of course, it is true that our judges, and not those in Strasbourg, are more likely to hand down decisions that may ask the Government to think again. I wonder whether the Opposition prefer such judgments to come from Europe or from our own courts. We know what answer the Strasbourg court gives to that question, and my hon. and learned Friend Vera Baird has already referred to it. It gives what it calls a large margin of appreciation in favour of domestic legal systems—and quite right too.
The Minister seemed to be coming to the nub of the argument, but then shied away from it. If I understand her correctly on mandatory tariffs for life sentences, she appeared to suggest that the Home Secretary would legislate to overturn any possible decision taken by the House of Lords but might, if the decision went against him at the European Court of Human Rights, accept that. Is that the position? Would he legislate if the House of Lords were to tell him that a sentence were contrary to the convention but would accept the decision of the court in Europe itself? The House is entitled to know.
The House is entitled to know when we know what the House of Lords judgment will be. As my hon. and learned Friend the Member for Redcar said, the hon. Gentleman's speculation is entirely premature. We will face the issue if and when we meet it.
The Opposition's second argument is that our current system of subscribing to the ECHR, and the Human Rights Act's incorporation of that, takes power from Parliament and puts it in the hands of judges. However, as we are already signatories to the convention, the Act simply means that British rather than European judges are allowed to pass judgment. The Attorney-General rightly pointed out this month in relation to the Guinness four hearing that Parliament could today legislate deliberately and incompatibly with a convention right. The domestic courts would, of course, be obliged to give effect to Parliament's expressed intentions.
The Act is about the rule of law and not about the rule of lawyers and judges. It is crystal clear about parliamentary sovereignty. I refer Members to sections 4 and 6 that make it clear that the courts can issue a statement of incompatibility if they believe that primary legislation is incompatible with convention rights. However, that is not a strike-down power of the kind found in legislation in some other countries. Section 4 (6) clearly states:
XA declaration under this section ('a declaration of incompatibility')—
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
That is not to say that a finding of incompatibility does not matter, but neither should incompatibility in the way that the Opposition see it be regarded as a defeat or as a disaster for democracy.
As the hon. Member for Beaconsfield said, my Department faces some challenging decisions, and we are not alone in that. However, the Conservatives need to have a more mature perspective on such issues. Let us consider some past cases. Did parliamentary sovereignty, democracy or liberty crumble because the Court of Appeal used the Human Rights Act to challenge the Prison Service's blanket policy on taking all babies away from their mothers at the age of 18 months? I do not think that they did. The decision gave us an opportunity to consider the matter again. To put it simply, the judges were telling us that we could have a general policy, but that we had to be sure that it did not suffocate individual rights.
No, I want to make progress because I know that other hon. Members wish to speak.
Similarly, was it a disaster for democracy to hear that the Court of Appeal also applied the Act to overturn a system of in-built bureaucratic delay in which a tribunal made people wait eight weeks after making an application? It was not.
Another misconception that the Tories, or at least some of them, have is that Europe forced the Human Rights Act on us. They should know—perhaps they will tell the Daily Mail—that the ECHR is not Euro-law from Brussels. It results from Winston Churchill's creation, the Council of Europe. They do not understand that the Act was not an imposition, but a policy choice. It was the result of a clear manifesto commitment that the Government made to enable people to achieve their rights in this country.
The hon. Member for Beaconsfield referred to traditional British liberties that have served our country well for so long. Two centuries ago, John Wilkes could talk of the liberties of Britons to do what the law did not forbid. Since then, successive Governments have passed thousands of laws while, in the meantime, other countries set out the values that they shared in law. The people of those countries enjoyed the benefits of that. Apart from this country, only two developed nations had no constitutional settlement of this kind. Now there are none.
We need to remember that, 50 years ago, British lawyers helped to enshrine our basic liberties into the ECHR. However, people could claim them only in Strasbourg. One thing perplexing about the Tories' approach to the issue is that they try to portray the ECHR as counter to British values, our way of doing things, parliamentary sovereignty and democracy and concepts of liberty as outlined in their motion. In fact, the ECHR enshrines those British values, because those values were incorporated into the convention at the outset.
The Minister referred to views maturing. The Government have adopted the principle of a European constitution, and she knows from the statutes that emanate from the convention that a number of matters clearly set out the idea of making the fundamental charter of human rights legally binding within the jurisdiction of the European Court of Justice. That would make it somewhat autochthonous, if I can use that expression. Will she therefore acknowledge that, in relation to the European Court on Human Rights, the Government are giving way to the idea that that jurisdiction could be subsumed into an overriding supreme court as envisaged, for example, by Professor Dashwood's constitutional treaty?
No, I do not acknowledge that that is the logical conclusion.
In a democracy, such as that in the United Kingdom, human rights are not an absolutely rigid set of standards to which every other aspect of social and political life must bow. Our intention in incorporating the ECHR through the Human Rights Act was to provide a framework within which important and inevitable dilemmas would be debated.
Individual rights have to be set alongside the public interest. One person's rights can infringe on the freedoms of others, and Governments have the responsibility of balancing the rights of the individual citizen to freedom with the rights of the people as a whole, for example, to security and protection. Public protection from terrorists, dangerous offenders and others is the prime duty of Parliament; it is the Government's priority too. For individuals, rights are not absolute and unfettered: they have to be balanced with responsibilities.
Today, the Opposition have shown, yet again, that they are not able to grasp some of those issues. They are looking backwards, not forwards. They are out of touch and that, I fear, is why they are still out of government. The Labour Government have brought the framework of human rights into British law—a framework that now allows our courts to help us to strike the balances in the best possible way, as we develop a stronger sense of mutuality between individuals and between people and Government and, in so doing, develop a stronger, more cohesive society in which our international obligations are to the fore. The Labour Government understand that. We are committed to human rights, parliamentary sovereignty and democracy, and we have had the courage to bring those things together in a new settlement that fits us for the 21st century, and does not take us back in the 18th century, where the Opposition would like us to be.
Although I need not formally declare the interest, I am a lawyer and I both trained and worked at the Council of Europe dealing with human rights matters, before entering Parliament.
I welcome the debate because it is on an important issue, although I share the Government's surprise that the subject has been chosen at this time by the Conservative party. There are all sorts of reason for that surprise, including those enunciated by Vera Baird. I understand the position stated by Mr. Letwin, that one does not have to have a view before testing the view of the Government, but it strikes me that the Conservatives have not answered the fundamental question in the motion, which is whether we in the House, and the parties in the country, think that sentencing ought to be done by judges, or that in some cases the power ought to be reserved to Ministers. On that issue, I have not heard a clear statement of position from a Conservative Front Bencher, and the Government have voiced apparently contradictory positions. I shall happily return later to the Liberal Democrats' position, because this is one of those debates—it does not always happen—in which I can in all honesty tell the House that, on all the issues relevant to the debate, Liberal Democrats as a party have a clear position and has had one for some time.
Other reasons, not enunciated by the hon. and learned Member for Redcar, for my sense of slight surprise at the motion on today's Order Paper are first, that I had always assumed that the Conservative party supports the rule of law—I hope that it still does—and secondly, that I have recently and increasingly often heard its leader voice the view that the Tory party must look after the interests of the vulnerable, which is a new approach that I laud and welcome, although we have yet to see whether it would be carried out in practice.
If one believes in the rule of law and in supporting the vulnerable, who are often minorities of some sort, it must logically follow first, that one accepts the ultimate supremacy of the European convention on human rights, to which we have subscribed for 50 years—indeed, we were the first signatory to it as well as, in large part, its author—and secondly, that one accepts that sometimes the courts will have to stand up for the minority, which Parliament has sometimes failed to do. I am therefore concerned about the implication of the position stated in the Conservatives' motion, which is worded as follows:
The one example given is the Home Secretary's sentencing power. Unless I have misunderstood the English, noting Xwith concern" the convention's impact on that power suggests that the Conservatives are not happy about it, which in turn suggests a degree of inconsistency with an acceptance that the European convention is right.
On the substantive issue, it is important that the House—however difficult it sometimes is to do so in the face of public opinion in part, and tabloid newspaper opinion in particular—stands up for the position that it should be judges who decide sentences and Parliament which sets the law within which those sentences are set. For me, that means that the individual sentence has to fit the individual crime, and for me and my party, it means that there should be no mandatory sentences—none, including for murder. It should always be up to the court to decide the sentence, within the upper limit fixed by Parliament. Taking the example of murder, the reason why it is wrong to have a mandatory sentence is that there is all the difference in the world between a person who premeditatedly plans the most gruesome killing of an innocent victim, and a person who after 30 years of taunting and domestic violence reacts, on the spur of the moment, by killing their spouse. It seems to me wrong to treat both in the same way.
The other principle that the Liberal Democrats have enunciated clearly—we did so when the Venables case, which came to court after the killing of James Bulger, was reviewed—is that it is logical and right that matters of how long a sentence should be, and then, when a case is reviewed, of whether it is safe for someone to be released, should be determined by a judge, either the original judge or a judge who takes their place. It is wrong that someone's sentence should be decided by a politician, who cannot help but be tainted by his political function. That decision should not be influenced by politics
The hon. Gentleman has, to some extent, covered the point I intended to make. He knows that I have a great deal of sympathy with the view that judges should determine sentences and that there should be determinant sentences for homicide. However, there is a problem to which he alluded, namely, the public safety. There is some merit in a life sentence that enables the Home Secretary to act if he were persuaded that, at determination of the tariff, the person remained a public threat. That is the one advantage of the life sentence.
I absolutely understand that point, about which the public are rightly concerned and would want us to be concerned. My view is that the matter should come back to the court and the court should determine, on the evidence, whether it is safe to release the person in question. I agree that a safeguard is needed. One cannot know when one is sentencing a person whether it will be safe to release him in 10, 15 or 20 years.
I wish to give the reasons why all sentences, including life sentences, should be set by judges and not by politicians. First, life sentences—established about 100 years ago—were never intended to be life long; they were intended to be very long sentences that were subject to review. Secondly, the royal commission on capital punishment in 1953—soon after the European convention was signed by the United Kingdom—said that judges should determine the length of sentences, so the argument for change goes back to the beginning of the convention. Thirdly, when that proposal was rejected by Parliament—and we first abolished the death penalty on a trial basis—the Home Secretary was given the power to continue to decide on these matters; not to give him additional powers to extend sentences, but to prevent overlong or unnecessary detention, so the Government could allow for rehabilitation.
The hon. Gentleman is right, as one can see from reading the debates. Yet he will acknowledge that Sir Frank Soskice, the then Home Secretary, made clear the reverse argument: that there were some circumstances—because of the behaviour in prison, the character, or the assessment of the person who had been sentenced to imprisonment—in which he might find himself constrained to decide that the person should continue to be detained.
Surely the real reason is the unspoken one, which is that a deal was done. As most members of the public wanted the death penalty to continue, the public had to be assuaged—or, at least, Members of this House who supported the retention of the death penalty had to be persuaded that the Home Secretary would, if necessary, keep people in prison for ever. It was just a dirty political deal.
The hon. and learned Gentleman is quite right; this was a matter where Parliament led public opinion, which had not been persuaded of the argument. We had had cases where Lord Chief Justice Goddard sentenced people to death who were later found to be not guilty. I do not regard the matter as a dirty political deal. I understand why it happened, but we have moved on since then.
When subsequent Home Secretaries introduced the notion of the tariff, they did so without any parliamentary debate or secondary legislation; it was introduced, as it were, by a Government statement. Many reports of the bodies concerned over the years, including the Home Affairs Select Committee, have recommended that there should be judge-made sentences, not politician-made sentences. That included the last Home Affairs Select Committee report under the last Conservative Government, a Committee that had a Conservative majority.
The logic of the cases that have been debated here, which came from Strasbourg and dealt first with young people, was that we should apply the same principle to adults. There does not seem to be any logical distinction between the two. By signing the sixth protocol to the ECHR, Parliament has prevented itself from being able to reinstate the death penalty, so the reason for the old position has gone.
In addition, other parts of the United Kingdom have judge-set sentences. Scotland has them, and it is not an issue there. In Scotland, the Justice Minister—my friend Jim Wallace, a former Member of this House—does not set the sentences. In Northern Ireland, legislation is going in the same direction. We have heard the arguments and, around the world, all similar jurisdictions have moved away from the system that we are discussing. Whatever the House of Lords decision may be, sooner or later we should, and we will, have judge-made sentences, not Home Secretary-made sentences.
I give the hon. Gentleman the same answer that I gave to the right hon. and learned Member for Sleaford and North Hykeham. I am on the record as saying that it should be for the courts to make sure whether somebody who has been given a life sentence is safe to be released. When juveniles become adults, it is my view that there should be the same reassessment. Also—this will be topical in the next Session—the same should apply to people with a history of mental illness or mental disorder. I would far rather that courts made that decision in public, on the evidence, than—with great respect—parole boards sitting behind the scenes. The parole boards have done a difficult job well, but for reasons of public safety and reassurance those decisions should be made in the open.
My party enthusiastically supported the Human Rights Act in both Houses, believing it to be right and proper for Britain to make the convention directly enforceable. Every Council of Europe country that is a signatory to the convention has now done that, with the exception of Ireland, which is considering doing so and in any case has long had a written constitution and Bill of Rights.
The Act appears to be hugely successful. In the lecture that has already been referred to, Lord Woolf made it absolutely clear that he considered it to be a good thing and working well, and the other senior judges fully support it. The remedy for a human rights breach is now available far more quickly—one used to have to go to all the domestic courts and then to Strasbourg, and that often led to justice denied.
The Act means that our courts can now influence the jurisprudence of Strasbourg. It has not been abused, and I think that only one case has resulted in compensation. It means that we scrutinise our legislation for human rights implications more thoroughly. Civil servants have to do that and Ministers have to certify compliance, and the Joint Committee, chaired by Jean Corston, has done an extremely good job on behalf of both Houses, ensuring that every piece of legislation is examined. I pay tribute to her and her colleagues for their part in ensuring that Parliament can do its job properly.
The Act has made us much more human rights conscious. Official secrets legislation dating from the first world war—passed in haste and repented of at leisure—could never have remained on the statute book so long if we had had this process. That is why, uniquely in the House, my party opposed the derogation in last year's anti-terrorism legislation. I understand the arguments, but we thought it unnecessary, as other remedies are available. We believed that other countries would not follow us in seeking derogations, and indeed they have not.
The implication in the motion that the Act is inimical to democracy is, as the Minister said, completely flawed. Lord Woolf dealt with that head on at the end of his lecture. The reality is that the best remedy against the excesses of the state—often the Executive, sometimes Parliament—is to have someone outside who can say, XYou've got it wrong." It is easy for Parliament to be swayed to support the view of the majority, but often we need to ensure that it looks after the interests of the minority just as much. Lord Woolf made it absolutely clear that occasionally judges are needed to do that job. They may be unpopular at the time, but they are needed.
We should consider our history, taking in Thomas Paine and the tradition that we have exported to the United States, as well as the French revolution. Going back even further, there is the declaration of rights and, more recently, my party's traditions, with Mill and all the others. We believe that liberal democracy is absolutely rooted in human rights, and sometimes we need something other than Parliament to defend it.
I pay tribute to those who fought the battle. When I was first interested in politics, I met the then Lord Wade, a Liberal peer, who was fighting to get the Bill of Rights incorporated in law. He kept trying, and it seemed almost cloud cuckoo land to imagine that it would ever happen, but he fought doggedly on and eventually he was proved to have been right. More recently, my noble Friend Lord Lester, who has many years experience in human rights and serves on the Joint Committee, fought hard to secure the legislation. Parliament achieved a balance, saying that it need not accept the court's decision, but accepting that eventually it could be overridden by the European Court of Human Rights.
No one listening could fail to be impressed by the hon. Gentleman's evident sincerity and the logic of his arguments. Does he accept, though, that there is a difference between using such a structure of argument in the United States, where constitutional amendment is available as a democratic device, and using it in our current circumstances, when we are denying Parliament the ability to contradict the judges' interpretation of a document that Parliament cannot change? Is not that a fundamental difference?
It is a difference, and we could have a perfectly proper debate about that. Unlike the United States, we do not have a written constitution. This country has signed up to a European convention, rather as the states in America signed up to the federal constitution.
I intended to end on this point, and the right hon. Gentleman leads me to it. The process of our democracy and the defence of human rights is an evolving and developing process. I welcome the debate about how Parliament—the legislature—the Executive and the courts interrelate. But for us this will continue to be unsatisfactory in its resolution until we have a written constitution and a Bill of Rights. When we have, the parallel with the United States will be much more obvious, and the citizen will understand more clearly the relationship between himself or herself and the state.
The great benefit of being brought up in the United States or in France is that young people there understand their rights and obligations more clearly than they do in this country. We still have some way to go. The Human Rights Act was a good start, and independence of the judiciary is an important principle—but there is further work to be done, and further constitutional reform is still urgently needed.
I am grateful for the opportunity to take part in a debate on the implications of the Human Rights Act 1998. I agreed with my hon. and learned Friend Vera Baird when she surmised the reasons why the Conservatives chose this subject for debate this week—but I am pleased to say that the Court of Appeal shot their fox last Friday.
Such time as I have, I intend to devote not to recent cases in the Court of Appeal, nor to the position of politicians with regard to determining sentences, but to a recently produced pamphlet containing what passes nowadays for thinking on human rights in the Conservative party, including an article by Mr. Letwin, the shadow Home Secretary, entitled XLiberty under the Law" and a foreword by Lord Cranborne.
The pamphlet says that there is little parliamentary check on the expanding power of the state, which increasingly threatens individual freedom, so the role of protecting individuals from the excesses of state power falls to the judiciary. However, the European convention on human rights, which the Human Rights Act incorporates into British law, has at its heart the protection of individual freedom. As we all know, it was drafted in response to the experience of fascism in the 1930s and 1940s, and is based on the principle of the rule of law in a democratic society. The convention protects rights, including rights to liberty, to freedom of expression and freedom of assembly and to privacy—an essential check against excessive intrusion into the personal sphere, which is, in essence, the right to be left alone.
As I hope I acknowledged in my speech, I recognise the work that is done by the Joint Committee on Human Rights, which the hon. Lady chairs. She will recollect that I also mentioned the provisions affecting education, for vetting to prevent paedophiles and other sex offenders from working in schools. There are draconian provisions, for no explicable reason, demanding that people provide bank account details, their mothers' maiden names and other information that appears to be an intrusion into privacy. Did the hon. Lady's Committee have the opportunity to consider that provision before it was enacted? If not, does not that, plus the fact that it was not debated on the Floor of the House, show how poor the ability of the House is—although it is not the fault of the hon. Lady's Committee—to provide adequate scrutiny of issues involving human rights when the Executive chooses to intrude?
I do not recall whether the Committee has given attention to that matter, although I would not want to say that I was sure. I am sure that the House can imagine the volume of legislation that the Committee has examined since its inception in January 2001, because it has examined every Bill, both public and private, that has been introduced into either House.
I shall now proceed, but would you confirm, Mr. Deputy Speaker, that if I take interventions, that will not affect the 12 minutes for which I am permitted to speak?
On a point of order, Mr. Deputy Speaker. I understood that the time taken by interventions did not count against the 12 minutes, but the response did.
Thank you, Mr. Deputy Speaker. Yes, I think that I could work that out for myself.
The HRA does not just Xarm the judges", as the right hon. Member for West Dorset put it, to defend freedoms; it places responsibilities on each arm of government—the Executive, Parliament and the judiciary—to protect human rights. It therefore requires everyone acting on behalf of the state to consider the rights and freedoms of the people whom their actions affect. Public authorities must ensure that their policies and practices are in accordance with convention rights. The Human Rights Joint Committee's inquiries—a Committee that I have the privilege of chairing—have shown that this process has had an impact on Government, although it is not as yet consistent across all areas of government, and more work remains to be done.
Parliament has an equally significant role to play under the HRA. As was said, section 19 of the HRA requires a Secretary of State who introduces a Bill to Parliament to state whether it complies with the human rights protected under the Act. My Committee has taken a prime role in this pre-legislative scrutiny process—to the benefit, I hope, of both Houses. This requirement has given Parliament a new tool to scrutinise legislation for HRA compliance. Since its establishment, the Committee has undertaken this work as its first priority, and it is hoped that its 20-odd reports on Bills and draft Bills have helped Parliament to become better informed about the balance to be struck between conflicting rights, and between rights, duties and responsibilities, when it is making law.
On page 1 of the pamphlet to which I referred, Lord Cranborne states in the foreword that the
Xjudges are not elected and have the right to overrule the decisions of our elected representatives."
That is not so. The courts have no power to strike down legislation; all that they can do is to make a declaration of incompatibility.
I accept that, but the foreword makes the sweeping statement that they are not allowed to overrule the decisions of our elected representatives. That is not the case. There has been one declaration of incompatibility that fulfils all the tests laid down by the right hon. Member for West Dorset, according to his freedom test. It concerns the mental health legislation that applied a reverse onus decision to anyone held under its provisions, so that, in order to be released, they had to show that they were not a danger to the public. The court said, probably rightly, that the burden should be on the state to prove that the person concerned was not fit to be released, rather than the other way around. That is the only time in nearly two years that Parliament has been asked to look at a declaration of incompatibility.
The pamphlet suggests that the judicial protection of liberty under the HRA is uncertain, and may be inadequate. However, the rights incorporated by the HRA are not vague and uncertain generalities. They are underpinned by a comprehensive body of jurisprudence of the European Court of Human Rights, in its application of the ECHR to member states of the Council of Europe, including the UK. As they are required to do under section 2 of the HRA, UK courts have, since implementation of the Act, drawn on this rich vein of case law in developing their own jurisprudence on human rights.
It is therefore a false antithesis to suggest that the HRA has created a paradigm shift in the balance between Parliament and the courts. The evidence does not support this view; nor does it suggest that we are on the brink of a revolution. Judges have always had a creative role to play in the making of the law—what else is the common law? One need only think of Lord Denning and his married women's equity. The idea that judges have always confined themselves to the narrow interpretation of black-letter law is a golden age myth that has absolutely no historical foundation, other than a wholly simplistic reading of British judicial philosophy.
The HRA is an Act of Parliament like any other. Through it, Parliament has chosen to give the domestic courts more direct access to the jurisprudence of the ECHR, to which the UK has been less directly subject for more than 50 years. Of course, the pamphlet criticises the decision in A v. the Secretary of State for the Home Department, but we all know what happened last week in the Court of Appeal.
The next criticism made is that the state's Xpositive obligations" to protect human rights potentially infringe individual freedom by regulating relationships between individuals. However, not every threat to human rights comes directly from the state. Human rights guarantees would be deficient were they not to require the state in certain circumstances to protect rights, as well as to refrain from interference with them. The state's duty to protect rights under the ECHR includes the duty to take steps to protect those known to be at immediate risk from known criminal activity and a duty to protect children from abuse and neglect in the home.
Under the HRA, the courts are obliged to have regard to the human rights of all those affected by their decisions. The balancing of competing rights is at the heart of the convention system for protection of human rights. Though rights to privacy may place limits on freedom of expression, those limits will be acceptable only when they are in pursuit of a legitimate aim and are necessary, proportionate and non-discriminatory. The positive obligation on the state to protect one right does not therefore authorise unfettered interference with another.
The HRA is about respect. Page 13 of the pamphlet makes a rather unpleasant reference to homosexuality. It reminded me of what happened when Mr. Duncan made a statement about his sexuality. Mrs. May, the chairman of the Conservative party—that is what she calls herself—said that the party was tolerant of such things. It is a matter not of tolerance but of respect. Until the Conservative party understands that, it will stay on the margins of politics.
My hon. and right hon. Friends are to be congratulated on the motion, because it enables us to discuss issues that are not generally discussed on the Floor of the House. They will doubtless therefore be sorry that I disagree with them on their two principal points and will not accompany them into the Lobby tonight.
I wish to comment on the tariff powers and, if time permits, to say a brief word about the convention itself. On the ministerial power to set tariffs, I have two preliminary points. First, we need to be clear about what the tariff is and what part it plays in the judicial process. The tariff is but a part of a life sentence. It is set in order to punish the defendant for the offence. To that extent it is like any sentence imposed by the courts. At the expiration of a tariff period, the Minister, together with the parole board, has the right to refuse—or agree— to release the defendant on licence, and during the period of licence the defendant may be recalled for an infringement. However, the important point is that the tariff is imposed by way of a penalty. It is, for the reasons that I shall discuss in a moment, a judicial process.
My other preliminary point is that I have considerable personal experience of the matter. Between 1986 and 1989 I was the Minister responsible for determining tariffs. Indeed, with the exception of the then Lord Chief Justice, I do not suppose that anybody imposed more tariffs—I am advised that I imposed something like 600. That was partly because an awful lot of cases came up to me and partly because my predecessor left an enormous backlog, so I did rather a lot of tariffs.
It might be helpful if I tell the House something about the process involved in setting a tariff. I admit that this was 12 or 14 years ago, but knowing the way in which officials operate, I do not suppose that it has changed very much in the intervening period and, anyway, the principle holds good. What happens is this: a file is presented to the Minister. On the front page is a document that describes the offence in three or four lines. There then appears the trial judge's recommendation as to minimum sentence tariff, which takes up two or three lines. There then appears the recommendation of the Lord Chief Justice, which is usually rather longer, unless he simply says XI agree." There then appears the recommendation of the Department. Then there is a little box where the Minister marks his own determination. On the basis of that rather scanty information, a tariff is imposed by the Minister.
The Minister is acting on pretty scanty material and is probably doing it fairly quickly. As I say, I imposed some 600 tariffs. This may be seen as a clear example of Ministers arrogating to the Executive a role that clearly should be performed by the judiciary. The process that I have described is not subject to appeal or to supervision. It is really the seizure by the Executive of powers properly belonging to the judges, and it is highly objectionable.
It is said by some, often by my right hon. and hon. Friends, that because Ministers are accountable to Parliament, they are quintessentially the right people to do this sort of thing. To that I say XRubbish" on at least three counts. First and most obvious, the tariff is a penalty, and I happen to believe that a penalty should be imposed by a judge, not least because the judge knows about the facts of the case while the Minister knows only what is on a bit of paper unless he happens to ask for more detail.
Secondly, the idea that Ministers are accountable to Parliament on this matter is for the birds. I do not recall that either I or the then Home Secretary, now Lord Hurd of Westwell, were ever asked about what we were doing in this respect. That was rather an omission, as we were in the business of driving up the tariffs, as a subsequent report by the House of Lords made plain. Nobody asked me about the policy, although I would have been quite happy to tell them. However, the idea that I was accountable to this House is for the birds.
On the contrary, I acted with great restraint. Not only that, but I dictated the guidelines to the Department that would set out the principles that I would apply. However, that was to perform a role that a judge, not a Minister, should perform.
I have one further point about accountability. A Minister standing at the Dispatch Box, heavily armoured with his brief and understanding the facts, is not accountable to the House. The House does not have the appropriate processes with which to make a Minister accountable, save in Select Committees. The idea that a Minister will be embarrassed or taxed or supervised is simply an illusion.
There is a further point. Even if Parliament could hold a Minister to account, it should not do so in respect of individual sentences in individual cases. It is perfectly proper for Parliament to set out general policy, but wholly improper for Parliament to scrutinise individual sentences imposed on individual defendants, because, of course, Parliament is driven by the tabloid press. Too often, Members of Parliament respond to the lynch-mob mentality of the public. Members of Parliament will never know the exact facts of a particular case, or indeed the sentences imposed in relatively comparable cases.
For all those reasons, I strongly believe that the function is not properly ministerial but judicial.
The right hon. and learned Gentleman knows that I share his view. When he was dispensing that type of ministerial justice, did he hold his current view?
If the right hon. and learned Gentleman held that view, surely he is now at liberty to reveal, in general terms, whether the Government discussed changes to the law that would have allowed judges to replace him as the dispenser of so much rather summary justice.
On the hon. Gentleman's latter point, I do not remember. I was only an Under-Secretary at that stage. However, I have always held the views that I expressed today and I have always expressed them robustly. I never thought that the function was one for Ministers to perform, but I am not a squeamish fellow, as you know, Mr. Deputy Speaker, and I never hesitated to perform the functions entrusted to me—even if I thought they were wrong, as I then did.
I realise that time is running out so I turn briefly to the convention itself. I want to make some general points. It is true that the incorporation into domestic law of the convention has given the judges a legislative function. As a member of the legislature, I understand the objections to that. All in all, however, I am very much in favour of the incorporation of the convention into domestic law. It is wholly right to say that justice delayed is justice denied. If it be right to have recourse to the courts, better by far that people can raise convention-based issues at first instance in the UK courts than have to go to Strasbourg.
Secondly, and rather differently—it is part of the margin of appreciation—it is to the interests of the United Kingdom that the body of jurisprudence that will emerge on the basis of the convention addressing UK issues should actually reflect the views formed at first instance by British trial judges. That is to our interests.
Finally, I believe that the House does not properly defend the interests of the citizen. As the House will remember, my father delivered lectures on and wrote a book about Xthe elective dictatorship". We have surrendered to the Executive the control that we ought to have over policy and over legislation. Party—I look at my hon. Friend the Whip—exercises far too much authority over Members of Parliament.
I certainly do.
We need many more independent Members of Parliament. If we had them, we should not need the convention. However, because we do not perform properly our functions—to defend the citizen—better the convention and judge-made protection than no protection at all.
I fear that I may not be as independent as Mr. Hogg would wish.
I welcome the debate and am glad that it was initiated. It is good that we debate the role of Parliament and the judiciary in decision making, as the Opposition have urged us, and that we recall developments in the common law.
I am a non-practising solicitor but unlike many Members who have declared that interest, I do not have a law degree. I took the cheaper route, so I did not have the chance to engage in jurisprudential debates and may have a hazier idea than I should about the origins of the common law.
As the hon. Gentleman says, I shall now be able to learn.
Although the debate is welcome, it is somewhat artificial, as has been mentioned, particularly by Simon Hughes, who rightly said that we were signatories to the European convention before its incorporation into United Kingdom law, and that it was therefore a question whether cases went to Strasbourg or were dealt with domestically. In that sense, there has been no change.
There may have been a change—Mr. Grieve seems to decry this, but he will correct me if I am wrong—in that those who feel that their human rights have been trampled on take the matter to court in the United Kingdom because it is easier to do so. However, that does not seem to be a problem—access to justice is easier for people.
I did not suggest that that was a problem; I said that it had consequences—I hope that the Minister will address them in her reply—and that it appeared that the Minister and the Home Secretary were parting company with the operation of the ECHR and its incorporative Act on some specific issues. I hope that a Government Member will address those points this evening because that is what the debate is all about.
What the Minister addressed in general terms was the balance that must be struck between, for example, the right of a state to protect itself, which we have done with the anti-terrorism legislation, and the human rights of individuals. If the hon. Gentleman thinks that the issue has not been dealt with fully enough, I am sure that the Minister who is to reply will tackle it further.
The debate highlights the need to discuss mandatory life sentences. They have been mentioned tonight and, no doubt, will be debated again. Some of the drive for the debate comes from that issue. I am uneasy about mandatory life sentences for murderers, because they have led us into problems. The abolition of the death penalty was an historic compromise, but we moved beyond that with the signing of the sixth protocol.
We experienced the same difficulty with the abolition of the death penalty. One practical reason, in contradistinction to the forceful moral arguments, why the death penalty was abolished was that juries would not convict in many cases because the penalty—death—was so draconian. There is a similar situation now, understandably, with survivors of domestic violence. They can be charged with murder because their actions fulfil the letter of the law on murder, but juries will not convict because it would mean a mandatory life sentence for those women, and so difficulties arise. There is a bending of the law on provocation, diminished responsibility and so on, so we need to look again at mandatory life sentences.
The hon. Member for Beaconsfield talks about the limits to be imposed by the House on judges' discretion. One of the things that made me proud to be a solicitor was that, when the iron curtain came down in 1989, the countries in eastern Europe advanced two key demands. One was for parliamentary democracy and the other was for the rule of law, because they did not have an independent judiciary, as we have had for centuries. That is important, but one has to debate the balance between the power of the judiciary and that of the House of Commons as sovereign body.
The hon. Gentleman referred to rights disappearing down the plughole, but I do not recall him giving the House any example of what those rights were. He focused on mandatory life sentences and the Home Secretary's powers of review.
The hon. Gentleman gives a straightforward example. The original intention was that a murderer should serve a life sentence. That is how the public perceived the sentence, even though a person might be freed long before spending the whole of his life in prison. That principle has gone down the plughole. There can be no doubt about that, as the hon. Gentleman will probably agree, but the public and the House have not debated that issue.
The hon. Gentleman replies eloquently, but I think that the record will show that he used the word Xrights" in the plural, and he simply mentions one right now.
The first few lines of the Opposition motion state:
I must say that the official Opposition have been singularly quiet about what they mean by Xin other respects". We have had references to the Special Immigration Appeals Commission—
If I may, I shall make some progress and give way in a moment.
We have had reference to SIAC, section 172 of the Road Traffic Act, teacher vetting, the early release of prisoners and how much power a prison governor has. Does that encompass what the Opposition mean by the words Xin other respects", or is there more to it than that?
The list may be endless, but the House would perhaps benefit from a more expurgated list. Members can take a balanced view of whether the Home Secretary has too much discretion. I hope that, later in the debate, official Opposition Members will fill out the picture, especially in relation to the fine words in the last two flowery lines of the motion. They sound good but do not mean much to me in the context of the debate. They refer to:
Xa lasting settlement that can bring the Human Rights Act 1998 into conformity with the democratic will of the people and the concepts of liberty that have served this country so well for so long."
I would like some flesh on those bones, and it is fair to ask the official Opposition to provide some.
This is an Opposition debate—a chance for the Opposition to advance a clear view on an area of their choosing. I must say to the hon. Member for Beaconsfield and his colleagues that I do not think that he has done so. He has thrown together a hotch-potch of criticism and questions. Mr. Letwin asked the Minister whether it was right that one should always have a fixed view.
Order. The amount of time left is diminishing, and several hon. Members wish to speak. Mr. Grieve has had a fair share of the debate.
May I start by asking whether it is strictly necessary for declarations of interest to be made in a debate on this subject? There are several members of the Bar and solicitors in the Chamber, but we are all taxpayers, too, and we do not declare that we are taxpayers when we discuss the Budget. Although I am prepared to admit that we are members of the Bar, why should we need to declare that when discussing this legislation—[Interruption.] I know that my right hon. and learned Friend Mr. Hogg did not declare his Bar membership, but he does not do all sorts of things, which is probably just as well.
The remaining power of the Home Secretary in relation to those with life sentences relates only to adults. Following the decision of the European Court of Human Rights on the case of Thompson and Venables, the murderers of Jamie Bulger, it seems that the Government have accepted that the Home Secretary should have no say in the length of time spent in custody by a young offender following a conviction for murder, and that that matter should now be dealt with entirely by the sentencing judge or judges reviewing the sentence thereafter. On the face of things, it is therefore logical that the Home Secretary should behave as my right hon. and learned Friend the Member for Sleaford and North Hykeham suggests, and leave the setting of minimum tariffs to the courts. That is, as one would expect from him, an entirely rational argument. He enjoyed making it and believes it can withstand all counterargument.
I accept that the British constitution is not a tidy document. It is to be found in a mixture of Acts of Parliament, treaties, common law, unwritten conventions and good old-fashioned political deals. When the death penalty for murder was abolished in the 1960s, an unspoken deal to placate those who were against abolition appears to have been brokered by which the tariff-setting power was retained in the hands of the Home Secretary. Just as neither Parliament nor the courts interfered with the Home Secretary's exercise of the prerogative of mercy, so they have not interfered in his tariff-setting powers in life-sentence cases since then. Listening to my right hon. and learned Friend, it is clear that most of us did not know what the Home Secretary, through his junior Minister, was doing.
The majority in this country would like the return of the death penalty. I am not part of that majority, and I am glad to say that their demands are held in check, or the ferocity of them diminished, by the powers of the Home Secretary to set the tariff in former capital cases. My right hon. and learned Friend's amendment would upset that and expose to danger the very necessary release valve that holds that aspect of public pressure in equilibrium. The passage of the Human Rights Act has upset that, too, as his amendment and the current case before the judicial committee of the other place—the Anderson case—make clear.
The British constitution is guided more by what is reasonable than by what is strictly rational. The problem with my right hon. and learned Friend's argument is that it is desperately rational but not always reasonable. The constitution works because whereas rationality is rigid, the concept of reasonableness is flexible enough to take account of changing circumstances, social mores and public opinion. It is noticeable that the Government amendment does not tackle either the Opposition motion or my right hon. and learned Friend's amendment head on, but tries to sidestep the issue. The Minister did not seem to know where she was. She came prepared with a speech that had no bearing on what my hon. Friend Mr. Grieve said and no one is the wiser or better informed for her contribution.
The Minister and her Government are the very people who introduced the European convention into our law through the Human Rights Act. They can hardly be seen to be agreeing with arguments that criticise them, expressly or by implication, either for not going far enough or for not anticipating the consequences of their own legislation. They have no excuse for not anticipating some of the consequences of the Human Rights Act, however. They were made clear beyond doubt by my noble Friend Lord Kingsland, the shadow Lord Chancellor in the other place when it debated the Human Rights Bill, and by Sir Nicholas Lyell and myself as shadow Law Officers when the Bill was before this House in the last Parliament.
One matter that we drew to the attention of the Government was the likelihood of a constitutional collision between the judiciary on the one hand and the legislature and the Executive on the other. When faced with an Act of Parliament or secondary legislation that makes little sense, judges will, properly, construe it in such a way as to make the most sense of it that they can. Sometimes it will happen that judges looking at some ill-considered or unconsidered legislation—there is plenty of that under this Government—will reach a conclusion that appears to be intended by the legislation but that is contrary to the European convention, and they will have to say so. That is inconvenient for the Government because they want to be seen, especially in criminal justice and asylum law, as tough and effective, and as the friend of the victim and the tireless enemy of the criminal and the illegal immigrant. Had such laws been suggested, let alone passed, by the last Conservative Government, they would have drawn howls of anguish from Labour Members as too draconian, but they are this Home Secretary's daily diet.
The Government are, of course, the very Government who also want to be remembered for having, as they so charmingly but inaccurately put it, brought human rights home through the enactment of the Human Rights Act. That is why their amendment is framed as it is. It enables them to look in two directions at the same time and explains why Labour Members always look so uncomfortable during such debates.
If the House of Lords in its judicial capacity decides, as it may well do in the Anderson case, that the convention requires the Home Secretary to surrender his tariff-setting powers, I get the impression that the words in the Government amendment:
"is fully in conformity with parliamentary sovereignty, which enables Parliament to reflect the democratic will of the people", are there to let us know that the Home Secretary will simply legislate to recover the power that the judges take from him. Having, as they put it, brought human rights home, and, in so saying, forgotten or shown their ignorance of the centuries of judicial work that protected and enhanced the rights of the citizen against the power of the state, the Government now want to ignore what the European convention requires.
The Government did that last year, following the
I know that the Human Rights Act was framed in a way that prevents judges from striking down primary legislation and that the Government can thus safely pass any such legislation. Having, by passing the Human Rights Act, placed themselves in a position of facing applications to the courts that challenge the Home Secretary's sentencing and other powers, and having, as I expect that they will, lost the Anderson case in the House of Lords, they will look inconsistent and somewhat unsure of the philosophy behind the Act.
Although I candidly admit that I was one of the Conservatives who did not have a fit of the vapours when the Human Rights Bill was enacted, I am one of those who feel that the Government's relationship with the European convention is confused and confusing. They have, through their enthusiasm to look in both directions, caused foreseeable friction between Parliament and the judiciary, and that is not only unwise but unnecessary.
I turn briefly to another aspect that concerns me: the judiciary's vulnerability to assaults in court—we are, after all, the party that protects the vulnerable. In a written question, I recently asked the Parliamentary Secretary, Lord Chancellor's Department, Yvette Cooper, how many assaults there had been on various ranks of judge and on court staff in the last five years. She kindly answered on
My colleagues who have referred to this as an important debate have been over-generous. I suggest that it is a waste of Parliament's time. Either we are being asked to debate, for no particular reason, a theoretical issue that might never arise, or, far more likely, Conservative Members have been caught out by bad timing in a cheap attempt to obtain political advantage.
The Opposition intended, I suspect, to suggest that the ECHR and the Human Rights Act have limited the Government's ability adequately to protect UK citizens from dangerous criminals and potential terrorists. I think that there are two reasons for the debate. The first is that when its subject was decided the Government had appealed on the point that they had lost at the Special Immigration Appeals Commission, namely that the detention provisions in the Anti-Terrorism, Crime and Security Act 2001 are discriminatory and therefore breach article 14 of the convention. The Opposition clearly thought that the Government would lose at the Court of Appeal in their argument that the detention powers are not discriminatory. The judgment was made only a week ago—too late for the Opposition—and the Court of Appeal agreed with the Government. The Government's victory has totally undermined the Opposition's argument.
The Conservatives have in their party difficult people who do not subscribe to the core values of the Human Rights Act. Those people would have wanted to say, XThe right thing to do with these people is to deport them, regardless of whether they may be tortured or executed. That is not our problem. If we do not deport them, we will be a safe haven for terrorists." That is one view that the Conservatives hoped could be expressed. The other view that the Opposition intended to express through the debate was, XThe Government cannot detain terrorists who are not citizens and they will not deport them, so terrorists will run wild in the UK." The intention was to generate a crime panic.
The hon. and learned Lady will have noted that in my speech, I spent most of the time dealing with the tariff for mandatory life sentences. I recollect appearing with her on a television programme last week to deal with that very point. She was extremely supportive of the Home Secretary's position, but I do not recall her at that time telling the world at large that she considered that an irrelevant topic for discussion. I would have heard it if she had said so.
I shall deal with the issue that the hon. Gentleman raised. The Government are waiting for the judgment on the Anderson case involving a challenge to the ministerial setting of tariffs for life sentence prisoners. The claim that the administrative policy whereby the Home Secretary sets tariffs is incompatible with article 6 has given rise to much media and Opposition speculation that if the Government lose, dangerous offenders will be instantly unleashed on the public. That is not the case. Mr. Grieve has never suggested it, but others on the Opposition Benches have. Such offenders can be released only if there is a further process by which they are judged to be no longer a risk to the public. I am afraid that the fact that the House of Lords adjourned judgment and did not decide against the Government, as the Opposition intended and as foreseen by those speeches, has caused them a terrible embarrassment. Again, they intended to whip up a crime panic.
There is no choice to be made between democracy and human rights; they go hand in hand. Respect for human rights is the hallmark of democracy and of Parliament, because it shows that society rightly values each and every human being. As the Lord Chief Justice put it,
XHuman rights come with true democracy."
Court cases that test the balance between the individual's and the community's rights are not a reflection on a particular Government, but an inevitable feature of all modern government. There is a common pattern of individuals seeking to test the boundaries of new law. The more legislation is introduced, the more people seek to challenge it.
The Government have put their case vigorously and are right to do so. They maintain that the powers given by Parliament to the Home Secretary to fix a tariff are right. So far, the Court of Appeal has agreed. The House of Lords may agree. If the House of Lords does not, as the Home Secretary has declared, he is entitled to legislate to enshrine the power. The Opposition are trying to speculate about what may happen after that, if the matter goes to Strasbourg—a situation that will probably not arise.
Let me tell the House what I think has been happening in the course of legislation dealing with life sentences. Because both the courts and the Government are acting on the basis of the same core values, there has been a healthy process of refinement. In the case of Stafford, the Lord Chief Justice accepted what had been in doubt for some time: that there ought in certain circumstances to be, in effect, a whole-life tariff, which he called a no-minimum tariff—that is, a judge would say, XI can't set a minimum tariff for this because it is so serious a crime." That is a shift brought about by good arguments presented by the Government in court.
The Home Secretary has in turn accepted that the second part of the discretion, after he has fixed the tariff, as to whether the person is released because they are no longer a threat, should be taken away from the Executive and entirely judicialised. In truth, the litigation has narrowed the ground as the principles have been debated, analysed and refined, all within the framework of the human rights system. The debate is premature because that healthy process is still continuing. It is continuing on Anderson, on the tariff, and in that case it is right to say that the Government's position has been upheld. On the anti-terrorism measure, it is probably better to describe the process as still continuing.
When cases have gone to Strasbourg against the Government—I believe that the Government have always accommodated the decision—there is the factor of the margin of appreciation, which cannot be ignored. Fair trial rights are, it is right to say, where the margin of appreciation is at its narrowest. It is the discretion of the Home Secretary, which is simultaneously part and parcel of our political processes, which the Strasbourg court insists is the area in which the Government tend to know best and is the place where the margin of appreciation is at its widest
On Anderson, we have won in the Court of Appeal. There is no decision in the House of Lords, still less has the case got to Strasbourg. Any argument that these matters should be debated before that occurs, granted the healthy process of refinement that has been going on, is in bald terms not about subtle constitutional terms but an attempt to grab a cheap political advantage.
The hon. Member for Beaconsfield referred to what he describes as the mantra which is put on to the front of every Bill. The Joint Committee on Human Rights looks at every such declaration made by a Minister. A healthy process is set up whereby sometimes, if there are disagreements, we write to the Minister concerned. He comes back with his understanding and we write back. There have been some occasions when Ministers have been adaptable and changed tack. There have been times when we have been persuaded that we are wrong. But, there is no doubt that we represent Parliament when we become involved in these matters. There is no doubt that a healthy tripartite dialogue has been engendered between the courts, Parliament and the Executive by the Human Rights Act. They have all worked together.
The Government are to be congratulated on introducing the ECHR. They are to be congratulated when they fight their corner when faced with clashes between their political will, democratically elected as they are, and the possible rights of a citizen. The citizen is to be congratulated too on fighting his corner. That is not a weakness in the incorporation process but a strength. It is not evidence that the Government have made a mistake. It is evidence that they are mature in their understanding of democracy. If the pamphlet that has been quoted by some of my hon. Friends is evidence of the views of some Opposition Members, it does not reflect a level of maturity that is likely to be attained by the Opposition. I look forward to the further spread of a human rights culture, ranging far and wide, over the years to come. I emphasise that human rights are an enhancement of democracy and not an enemy of it.
There are only a few minutes left for Back-Bench Members to speak in the debate, but there is a point that should be made before we come to Front-Bench speeches. Almost everyone who has spoken in the debate has high regard for the European Court of Human Rights. As one of a small minority who voted against the Human Rights Act 1998, as it became, I make the point that if we consider the practical policies of government and those who have to do the business of government, we find that the courts do not help human rights but simply undermine the principles of democratic government. I think that the evidence is there. I regret that the Home Secretary, who has undoubtedly virtually exploded when the European court has been interfering with decision making, is not here to explain to us what happens.
The convention was passed in 1951 and made into law in Britain in 1998. The argument advanced was that it cost a great deal of money to go to the European court and it would be far better to stay in the United Kingdom. I ask Ministers seriously to consider how the court has helped with the decision-making process and in trying to manage our affairs. If Ministers were put in charge of the asylum seekers' problem, what the blazes would they do when Government policies designed to enable cases to be dealt with quickly are undermined by the massive extra appeal process that is available through the European convention?
I am someone who I hope works, as all Members do, for good race relations, but I know that the numbers and the long decision-making process undermine the situation.
For example, a constituent of mine from Turkey has been appealing in various ways for a total of nine years. Furthermore, when the European Court of Human Rights made its decision on the person whom the Home Secretary recently tried to send back to the place where they had originally applied for political asylum, how did it help the process?
I ask those who admire the European Court of Human Rights, including my right hon. and learned Friend Mr. Hogg, who said that its members were much better than MPs, how on earth it is possible to manage a prison while the court is saying that the system that is used to try to control, restrain and discipline long-term prisoners has to be chucked out of the window. How is that possible if there is no power or right to say that a prisoner's amount of time inside is to be increased because he is badly behaved? If somebody were put in charge of running a prison and had that right taken away on the basis of human rights, how on earth would it help them?
How does it help our democracy when, because of the convention, this Parliament is not even allowed to consider issues about which the public feel strongly and in respect of which the arguments are far from clear, such as capital and corporal punishment? Far from helping democracy, that has undermined the ability of Ministers to deal with practical problems and is making life infinitely more difficult for them. In addition, we should bear in mind that discussions are under way that will bring the powers of the convention into European law. Frankly, when that happens, even the motion, which implies that there may be a case for further consideration or discussion between the parties, would be completely irrelevant.
The issue about which we should be most worried is the extent to which people are simply switching off from democracy. They do not bother to consider what happens in the House of Commons, because our Parliament has no power in relation to so many of the things about which they care passionately or does not consider them.
If, by chance, I am right in what I am saying, the question is this: what can we do? The plain fact is that more and more powers have been going to the European courts—both the European Court of Human Rights and the European Court of Justice. We can do nothing about what has happened in terms of the European Court of Justice or the European Union, but we can do something about the convention. I genuinely wonder whether the House should ask itself what damage we would do and what benefits would come to us if we were to cancel the 1998 Act and repeal the convention. Surely, our Parliament can look after people's entitlements, rights and obligations with far more care and consideration than by leaving the issues to European courts.
When all the institutions started, we heard people say that they would safeguard freedom, democracy and liberty. We have then seen the courts step in and take more and more powers by stretching the wording of the convention and, as in some recent decisions, by quoting other conventions such as the international covenant on civil and political rights and the convention on the rights of the child, which have not even been discussed or approved by the House of Commons.
While the Government have heard many learned arguments about the merits of the European Court of Human Rights, I hope that they will ask themselves whether we could better safeguard our liberty and freedom if Parliament took back the powers. In such circumstances, if people did not like the decisions that were made, they could change them or seek to undermine the Government. Currently, the powers of Parliament are disappearing and our democracy is dying. All the powers seem to be going to courts, institutions and organisations over which the people have no control. I therefore hope that the Government, on the advice of the Home Secretary and others who see how these issues work and what the institutions are trying to do, will think seriously about getting rid of the Act that we foolishly passed and which I voted against in 1998, disengaging from the convention and looking after people's freedom and liberty as a democratic Parliament.
This has been an extremely interesting debate, even if the Government's position has proved rather confusing in some respects.
I should like to begin by making a general proposition, before dealing with a number of the speeches that have been made. In particular, I want to refer to the four famous essays on liberty written by Isaiah Berlin and to XTwo Concepts of Liberty", which was written in 1958 and which I had the pleasure of hearing in his lectures at Oxford university at that time.
There is much to be learned from the wisdom of philosophers, but we as politicians have to reconcile politically the broad concepts mentioned in the motion and those that were enunciated by those such as Isaiah Berlin. I repeat, however, that we must also reconcile the pronouncements of judges—they are the essence of the debate—particularly in the age of judicial activism. As my hon. Friend Mr. Grieve stressed and as has been said so often, Parliament's role is the key and at the bottom line. We must determine where the limits between the courts and Parliament should be drawn.
I also wish to quote directly from the case of Regina v. the Secretary of State for the Home Department ex parte Simms, and the judgment of Lord Hoffman. This may reassure my hon. Friend Sir Teddy Taylor, but I do not think that I will be able to give all the assurances that he and I would like. None the less, Lord Hoffman clearly states:
XParliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words."
That point runs right throughthe debate and through my interventions on the Minister. On matters of political judgment on issues such as public safety, paedophiles, serial killers, terrorists, deportation and extradition, the fact remains that the House retains the power to be able to take the necessary legislative measures to remedy all previous enactments, including the European convention on human rights as brought into effect by the Human Rights Act 1998. I shall be interested to hear whether the Parliamentary Secretary, Lord Chancellor's Department, Yvette Cooper, is prepared to go down the route adumbrated by Lord Hoffman.
No, as I have only a few minutes left.
I also made a point of general principle in an intervention, and we must take it on board. This Parliament is having its powers eroded and, however much we are in favour of human rights, our rights are being eroded by the Government's proposals. The Government have already accepted, in principle, a European constitution, and I shall be interested to hear what the Parliamentary Secretary says about a legally binding fundamental charter of rights as put forward by the European convention currently sitting. The charter would be wrapped up in the enhanced powers of the European Court of Justice under many of the proposals that are being made for such a constitutional arrangement. If that issue is not addressed, the question whether we will, in future, be able to amend enactments such as the Human Rights Act 1998 will effectively be overtaken by the powers granted under such a European constitution.
The Minister failed to answer my questions about democracy and choice and about the legally binding charter of fundamental rights.
With respect, to my right hon. and learned Friend Mr. Hogg I will say only this: I appreciate that he will vote against the motion—
I am delighted to take that sedentary intervention, which is somewhat encouraging. Having regard to the 600 times that he appears to have admitted that he got it wrong, let me quote from XMurder in the Cathedral", when Thomas a Beckett says it is
Xthe greatest treason: To do the right deed for the wrong reason".
It is even worse than voting against a three-line Whip, which is something of which I have considerable experience.
It is incumbent upon us to take account of the words of Jean Corston, who said that the European Court of Human Rights is about respect. I understand what she means; the problem is that the question of respect, which is a moral statement, is not sufficient to deal with the difficult questions to which I referred at the beginning of my speech, namely, the necessity of making certain that we, as politicians, strike the balance vis-á-vis the protestations of those who want us to go down the route of universal rights without regard to their practical implications for those whom we represent in Parliament.
However much merit there may be in many of the principles included in the European convention on human rights, let us not assume that simply because it has been passed into our law, adjustments and calibration are not possible. When we face difficult practical questions, we in Parliament have to reserve the power to make our own decisions, and to do so after that enactment is put into force—not, as was suggested earlier, the power to do so only in respect of legislation that has been passed previously.
Rob Marris spoke about the Conservatives' apparent denial of the so-called Xother respects" mentioned in our motion. I have already referred to a range of them—in fact, I have here seven pages listing cases arising from matters of deportation, extradition and other issues. I can categorically assure him that we have all those matters very much in mind, because the debate deals as much with the question of principle as with the practical points raised by my hon. Friend the Member for Beaconsfield.
My hon. and learned Friend Mr. Garnier said that this debate and previous ones on the subject raise issues of constitutional collision. Of course, that is true. He echoed my intervention when he pointed out that the Government will have to legislate in a manner that is inconsistent with the assumption that they apparently made previously, that the European Court of Human Rights and the Human Rights Act 1998 would be adequate to deal with any problems that arose.
Will the hon. Gentleman tell us whether it is his view and that of his party that we should continue to respect the European convention and always be obedient to the judgments of the court in Strasbourg; and whether he thinks that judges or Home Secretaries should set the tariff for prisoners?
On his second point, the hon. Gentleman conceded in an intervention that there were issues of public safety that could vary the position. As for the more general point—the question whether human rights are ultimately important—of course they are important; we all accept that. It is just that on examination of every jot and tittle of the European convention on human rights, we may find a number of points with which we disagree and which we will have to deal with at a subsequent date—as the Government will have to admit in a few minutes.
I conclude by referring to some of the wisdom of our great philosopher Edmund Burke, who was dealing with questions of human rights in opposition to that arch-socialist Tom Paine at the end of the 18th century. He said:
XIn England . . . we have not been drawn and trussed in order that we may be filled like stuffed birds with chaff and rags and paltry blurred shreds of paper about the rights of man."
We have had an interesting debate this evening. My hon. Friend Jean Corston mentioned her hope that the work of the Joint Committee had contributed to the debate. I strongly believe that it has done and I pay tribute to the work of the Committee in scrutinising legislation.
Mr. Hogg gave us an entertaining and astonishing account of the 600 tariffs that he raised and, even more astonishingly, Mr. Cash intervened to suggest that the right hon. and learned Gentleman should perhaps have exercised more restraint in his decisions. The right hon. and learned Gentleman set out his views on the mandatory sentence. My hon. and learned Friend Vera Baird clearly set out the reasons why it is ridiculous to pre-empt the decisions of the court in this area.
Simon Hughes set out his and his party's position on the Human Rights Act, while Mr. Garnier referred to security for judges. That is a tangential point, but I can assure him that the Department takes the issues seriously and has introduced a series of measures to improve security.
My hon. Friend Rob Marris effectively challenged many of the arguments of Opposition Front Benchers, while Sir Teddy Taylor seemed to forget that the European convention on human rights has been in place for 50 years.
I come now to some of the points made by Opposition Front Benchers, to the extent that it was possible to follow them. Mr. Grieve was utterly baffling. He seemed to argue that the Human Rights Act did not conform to the democratic will of the people and threatened parliamentary democracy. He seemed to argue that because the Government defend cases under the Act, democracy is being undermined. He argued that it was inconsistent for the Government to support the Human Rights Act while ever defending challenges to the Government under the Act. He seemed to be arguing that the possibility that judges could rule an Executive decision or parliamentary statute incompatible with the Human Rights Act meant that parliamentary democracy was threatened. Clearly, that is not the position.
I will give way to the hon.Gentlemen. I would like to give way to the hon. Member for Beaconsfield, followed by the hon. Member for Stone to hear their individual points. I noticed that the hon. Member for Stone completely disagreed with the hon. Member for Beaconsfield and, by contradicting his hon. Friend, gave a clear account of the importance of parliamentary sovereignty under the Human Rights Act. However, the hon. Member for Stone did of course contradict himself later on; perhaps we should give him two opportunities to intervene so that we can hear all three possible views from the Opposition Front Bench.
I am grateful to the Parliamentary Secretary for having briefly stopped her peroration. Will she answer a specific question that I asked her? We are not talking about challenging decisions or arguing a case. It is the Home Secretary's stated position that if court decisions go against him, he will legislate to ensure that those decisions are overruled. What is the Lord Chancellor's view of that, given that he is the great craftsman of the Human Rights Act? Is that the Government's position? How do they intend to implement it? These are simple questions, which I should like her to answer.
The Human Rights Act allows Parliament to respond. Parliament can legislate to respond, it can accept a judgment of the court and, because Parliament is sovereign, it can choose to ignore the decision of the court under the Human Rights Act and refer it to the European Court of Human Rights, as has been the case for the past 50 years.
Interestingly, that probably gets to the heart of the disagreement between the two hon. Gentlemen. I suspect that the hon. Member for Stone is quite happy with the Human Rights Act. It is the European convention on human rights to which he is fundamentally opposed, because he freaks out whenever Europe is mentioned. I suggest that the hon. Member for Beaconsfield has reconciled himself to aspects of the convention simply because it has been in place for 50 years, but cannot cope with the Human Rights Act because that was introduced by a Labour Government.
Of course, Governments can strongly support the Human Rights Act and still take a strong view on whether an individual decision or statute is compliant with it. Of course cases may be found against the Government, and then it is for Parliament to decide how to respond.
Rectify what? Conservative Members seem to be calling for a Human Rights Act that is drafted to be whatever Parliament says. They want it to be continually compatible with anything that any member of any Executive does, and with any parliamentary decision. It is not clear what kind of Act that would be. They must recognise that, logically, they are arguing for pulling out of the European convention on human rights..
Mr. Letwin cannot quite bring themselves to say that explicitly. In his recent pamphlet, the latter set out what he means by
Xthe concepts of liberty that have served this country so well for so long", as the motion says. He said that it was a matter of
Xa freedom attaching to those who were British Citizens", not foreign nationals. Not for him, then, any concept of a common humanity regardless of birth or beliefs, or any recognition that people in other countries have rights, too. The logical extension of what he and the hon. Member for Beaconsfield have argued is that we should pull out of the convention. [Hon. Members: X No."] Then they should get up and say that they are committed to staying in the convention.
Luckily, the hon. Member for Stone is not so squeamish. Back in 1995, he wrote in The Independent:
XWe would lose nothing if we withdrew from the court and the convention; we would barely notice it."
Now he seems suddenly to have decided that Europe is perhaps not such a bad thing after all. This is an amazing conversion to the European cause. We have been signed up to the convention for more than 50 years. British lawyers helped to draft it and it reflects many of the values set out in our common law. The former Conservative Lord Chancellor, David Maxwell Fyfe, was involved in the drafting and debate. Past Tory Governments have accepted it, accepting the court's judgments and the rule of law. Even Margaret Thatcher did not try to pull out of it.
The really absurd thing about the position of the hon. Member for Stone is that he fails to recognise that the Human Rights Act brings the convention back home, allowing the rights to be decided by British judges in the British courts.
At least the hon. Member for Stone is honest about it: he just hates Europe.
rose in his place and claimed to move, That the question be now put.
Question, That the Question be now put, put and agreed to.
Question accordingly negatived.
Question, That the proposed words be there added, put forthwith, pursuant to
Mr. Speaker forthwith declared the main Question, as amended, to be agreed to.
That this House notes that the Human Rights Act 1998 is fully in conformity with parliamentary sovereignty, which enables Parliament to reflect the democratic will of the people; and further notes that the Human Rights Act enshrines the concepts of liberty that have served this country so well for so long.