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28 Oct 2002 : Column 604—continued

Mr. Grieve: 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?

Jean Corston: 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?

Mr. Hogg: 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.

Mr. Deputy Speaker: I think that the hon. Lady is fully aware of the position.

Jean Corston: 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

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.

Mr. Garnier: Judges do have a power to strike down secondary legislation.

Jean Corston: 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 the hon. Member for Rutland and Melton (Mr. Duncan) made a statement about his sexuality. The hon. Member for Maidenhead (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.

Post 11 September and Bali, human rights is the only game in town. Mahatma Gandhi once said that he intended to open the windows of his house to every religion in the world but that he did not intend it to be blown down by any of them. We cannot allow any one religion or religious philosophy, whatever it is, to assume that position. We have to have a common language for humankind, with a set of values that unites us all in an increasingly small world with huge population movement. That language can only be the language of human rights. It is to the Government's credit that they have submitted—

Mr. Deputy Speaker (Sir Michael Lord): Order.

8.53 pm

Mr. Douglas Hogg (Sleaford and North Hykeham): 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.

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