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28 Oct 2002 : Column 604—continued

9.39 pm

Mr. William Cash (Stone): 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 the Member for Beaconsfield (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 the Member for Rochford and Southend, East (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:

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, the hon. Member for Pontefract and Castleford (Yvette Cooper), is prepared to go down the route adumbrated by Lord Hoffman.

Simon Hughes: Will the hon. Gentleman give way?

Mr. Cash: 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 the Member for Sleaford and North Hykeham (Mr. Hogg) I will say only this: I appreciate that he will vote against the motion—

Mr. Hogg: I only said I would not be with you.

Mr. Cash: 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

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 the hon. Member for Bristol, East (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.

The hon. Member for Wolverhampton, South-West (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 the Member for Harborough (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.

Simon Hughes: 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?

Mr. Cash: 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:

9.50 pm

The Parliamentary Secretary, Lord Chancellor's Department (Yvette Cooper): We have had an interesting debate this evening. My hon. Friend the Member for Bristol, East (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.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) gave us an entertaining and astonishing account of the 600 tariffs that he raised and, even more astonishingly, the hon. Member for Stone (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 the Member for Redcar (Vera Baird) clearly set out the reasons why it is ridiculous to pre-empt the decisions of the court in this area.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) set out his and his party's position on the Human Rights Act, while the hon. and learned Member for Harborough (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 the Member for Wolverhampton, South-West (Rob Marris) effectively challenged many of the arguments of Opposition Front Benchers, while the hon. Member for Rochford and Southend, East (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. The hon. Member for Beaconsfield (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.

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