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7.37 pm
Mr. Paul Stinchcombe (Wellingborough): Thank you, Mr. Deputy Speaker, for allowing me to make a short contribution in this important debate. I declare at the outset an interest as a barrister who practised in human rights law before the election. I spoke in support of the renewal of the prevention of terrorism measures after my election, and on Second Reading of the Human Rights Act 1998.
When I spoke in the first of those debates, I had missed entirely two points that give rise to these proceedings today. I had not anticipated that any provisions had not been renewed and I certainly had not anticipated that it was arguable that those provisions were in breach of the ECHR and, therefore, in breach, in certain limited respects at least, of the Human Rights Act which we would shortly be introducing.
It is now clear that those provisions are arguably in breach of the ECHR, and it is also clear that the arguments are far from idle ones. They command the support of the Lord Chief Justice and, not just in muted terms, but in firm terms, he says that the provisions blatantly and obviously undermine the presumption of innocence. In so saying, he relies not just on his own judgment, but on authorities from abroad, including an authority from the Chief Justice of Canada and from a judge of the South African constitutional court.
Whether the Lord Chief Justice be right or wrong, in the face of that judgment, I find myself uncomfortable in coming to the House today and being asked to support the reintroduction of exactly the same provisions. I say that for these reasons. First, I have simply not had the benefit of the argument that the Lord Chief Justice had when he came to the conclusion that this was blatantly and obviously undermining the presumption of innocence. Secondly, an appeal is imminently to be heard in any event. Thirdly--a point that I raised by way of intervention--my right hon. Friend is today, before the appeal, coming to the House. He is not saying that he accepts that his measure is incompatible with the ECHR
and asking us to legislate in any event. Rather, he is simply saying that he has heard a judge say that it is incompatible and that he disagrees. That is not the way forward and not the way that the Human Rights Act anticipated would be the way forward.
Mr. A. J. Beith (Berwick-upon-Tweed):
The reason why my right hon. and hon. Friends and I feel that this matter could be brought before the House with a sense of urgency today is that Parliament's intention was frustrated by an error, and Parliament ought to have an immediate opportunity to restore the law to what it thought it had passed, without prejudice to the continuing argument over the compatibility of part of what we are passing tonight with the European convention on human rights.
I say "part of" what we are passing, because no one has challenged sections 16C and 16D in terms of their compatibility with the European convention. If the justification for action was an error, it would be slightly perverse not to restore the error as a whole. By restoring only part of it, on the grounds that certain provisions were in dispute in the courts in terms of their compatibility with the convention--although others were not--we would be selecting that part of the draftsman's error we were prepared to correct. That would not be a logical way of proceeding.
I say that without prejudice, in every sense of the words. It is without prejudice legally and, in more general layman's terms, without prejudice to the ultimate resolution of the question of compatibility by the case that is now proceeding in the courts. The Home Secretary did not complete the picture when he suggested what would happen if the Government continued to disagree on compatibility. After the issue has gone to Strasbourg, and if it is still found to be incompatible, there will then be created an obligation on Parliament not merely to consider defying Strasbourg by saying, "We do not like this and, in the national interest, we will not do it", but to pass legislation that becomes compliant. The end of this road is not potential defiance--we must seek compliance--but to follow a Strasbourg Court decision.
Those of us who are keen supporters of ECHR legislation hope that it will not often have to come to that. We hope that this House, on the basis of its initial consideration of proposed legislation, will not pass things that are not compliant, and that things that are found to be non-compliant will be changed fairly quickly. I shall refer to how we deal with that point in due course.
I raised with the Home Secretary yesterday a formal question, to which he gave an affirmative answer, about whether he would furnish a certificate of compatibility--as he would be obliged to do if this were primary legislation--if required to do so. He said that he would. I am bound to wonder what quality of advisers the right hon. Gentleman has if they can give that advice, when the
Lord Chief Justice has said otherwise in relation to the two sections. However, the Home Secretary seems persuaded and--as the legal proceedings are not over--he and the Government are entitled to put their case. We shall be interested to see what that is.
This point raises the question of what we shall do with the certificates, when Ministers issue them for future Bills, if they come out in a form that is already in dispute with what the Lord Chief Justice thinks of the law. The Lord Chief Justice's opinion is not final, but he is obviously a high-powered legal adviser. The fact that the Home Office thinks differently gives me cause for concern. Tonight, we are trying to put the law back to where Parliament thought it had left it in terms of the court case to resolve the compatibility question.
The procedures tonight call to mind the high risk of error. The Home Secretary misunderstood my question to him yesterday. He thought that I was implying that this error had resulted from the hasty way in which some of the proposed legislation had been treated. That was not my point. My point was that we have so often legislated in this area with unseemly haste that we run a high risk of errors of this kind. If we can do that on occasions when legislation has been dealt with properly and at greater length, the risk of doing so when we legislate in a hurry must be high indeed.
I call to mind the 1996 measures that created the cordon provisions, which were rushed through in a day or so, and the Criminal Justice (Terrorism and Conspiracy) Act 1998, which was rushed through in a matter of days, even though its provisions extended far beyond the purposes of terrorism. In fact, they have created an area of law which is subject to annual review. As far as I am aware, the Home Secretary still has not announced a reviewing mechanism for those parts of the Act that are not terrorist related. That illustrates the danger of rushing into legislation.
Usually, there are powers that can be used, as the Home Secretary said, but the legislation being introduced is intended to provide the police and other authorities with a readier instrument to deal with a difficult situation. In my experience, the sense of urgency has not usually proved justified, but the powers have often proved useful.
The use of the cordon power on more than 80 occasions by the Metropolitan police suggests that there was some purpose in enacting it, and the difficulty that they were having with the possession of materials intended for terrorist purposes, scattered around lock-up garages in various outskirts of the capital, shows that there was a need for some of the other powers.
The right hon. Member for Bridgwater (Mr. King), whom I greatly respect and with whom I have often worked, is pushing the argument a bit far in suggesting that the Government were wholly irresponsible for allowing some days to pass while they sorted matters out. There were provisions on the statute book that could be used. Indeed, they were on the statute book for most of the time that the previous Government were in office, when they did not consider it necessary to introduce provisions in this precise form.
It is appropriate to restore the law to what it was, partly because of the usefulness of the provisions and partly because Parliament thought that they were there all along.
If there were no means of challenging a possible incompatibility, I would not advise my right hon. and hon. Friends to support the motion, but there is a court procedure to be followed and the whole of the legislation is, rightly, under review.
Temporary provisions and occasional "recess Acts", enacted either on the very eve of a recess or in a recall, have had to be reviewed. They have been the subject of a consultative paper, in response to which there have been criticisms of sections 16A and 16B, which I hope that the Government are considering. I would like the Government to make it clear that the consultative process, the proposal phase of which was completed in March this year, will come to reasonably early fruition.
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