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28 Oct 2002 : Column 604—continued

Mr. Cash rose—

Mr. Grieve rose—

Rob Marris: 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?

Mr. Cash: To accept the hon. Gentleman's invitation, a vast range of matters and a huge number of cases exist in which the discretion of the Secretary of State arises, including matters such as extradition and deportation. The list is endless.

Rob Marris: 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:

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. The right hon. Member for West Dorset (Mr. Letwin) asked the Minister whether it was right that one should always have a fixed view.

Mr. Grieve rose—

Rob Marris: I shall make a little progress.

Of course, one should not necessarily have a fixed view, but I would have hoped, given that the Opposition called for the debate, that their views would be more fixed. I give way to the hon. Member for Beaconsfield.

Mr. Deputy Speaker: Order. The amount of time left is diminishing, and several hon. Members wish to speak. The hon. Member for Beaconsfield (Mr. Grieve) has had a fair share of the debate.

Rob Marris: I urge the hon. Member for Beaconsfield or the right hon. Member for West Dorset to put more flesh on the bones, use more intellectual rigour, and put more definitive views to the House on an important topic of the Opposition's choosing.

9.13 pm

Mr. Edward Garnier (Harborough): 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 the Member for Sleaford and North Hykeham (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 the Member for Beaconsfield (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:

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 11 September outrages, when the Home Secretary declared a state of emergency so that he could take this country outside the convention and pass emergency legislation that was plainly in breach of it. In one sense that was an advance because at least it showed that the Government had thought about the convention, rather than rubber-stamping the ministerial statement of compliance on the face of every Bill that they put before us.

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, the hon. Member for Pontefract and Castleford (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 24 October, and fortunately the figures are fairly low. However, the answer was given the day before a High Court judge was battered in court. If there were one thing that she could do this evening that would enhance her reputation in my eyes, it would be to assure me that the Government will do all that they can to protect judges and those who work in the courts from vicious and foreseeable assaults by disappointed litigants.

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