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28 Oct 2002 : Column 604—continued

Mr. Grieve: 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 15 October in which he made a telling point about the way in which the Human Rights Act operates. He said that it is:

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.

Simon Hughes (Southwark, North and Bermondsey): 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?

Mr. Grieve: 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 the Member for Sleaford and North Hykeham (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, the right hon. Member for Blackburn (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.

Simon Hughes: 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.

Mr. Grieve: 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.

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