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28 Oct 2002 : Column 604—continued

9.22 pm

Vera Baird (Redcar): My colleagues who have referred to this as an important debate have been over-generous. I suggest that it is a waste of Parliament's time. Either we are being asked to debate, for no particular reason, a theoretical issue that might never arise, or, far more likely, Conservative Members have been caught out by bad timing in a cheap attempt to obtain political advantage.

The Opposition intended, I suspect, to suggest that the ECHR and the Human Rights Act have limited the Government's ability adequately to protect UK citizens from dangerous criminals and potential terrorists. I think that there are two reasons for the debate. The first is that when its subject was decided the Government had appealed on the point that they had lost at the Special Immigration Appeals Commission, namely that the detention provisions in the Anti-Terrorism, Crime and Security Act 2001 are discriminatory and therefore breach article 14 of the convention. The Opposition clearly thought that the Government would lose at the Court of Appeal in their argument that the detention powers are not discriminatory. The judgment was made only a week ago—too late for the Opposition—and the Court of Appeal agreed with the Government. The Government's victory has totally undermined the Opposition's argument.

The Conservatives have in their party difficult people who do not subscribe to the core values of the Human Rights Act. Those people would have wanted to say, XThe right thing to do with these people is to deport them, regardless of whether they may be tortured or executed. That is not our problem. If we do not deport them, we will be a safe haven for terrorists." That is one view that the Conservatives hoped could be expressed. The other view that the Opposition intended to express through the debate was, XThe Government cannot detain terrorists who are not citizens and they will not deport them, so terrorists will run wild in the UK." The intention was to generate a crime panic.

Mr. Grieve: The hon. and learned Lady will have noted that in my speech, I spent most of the time dealing with the tariff for mandatory life sentences. I recollect appearing with her on a television programme last week to deal with that very point. She was extremely supportive of the Home Secretary's position, but I do not recall her at that time telling the world at large that she considered that an irrelevant topic for discussion. I would have heard it if she had said so.

Vera Baird: The louder the hon. Gentleman shouts, the more prominent his weak arguments become, and the clearer are the motives of those on the Opposition Front Bench.

I shall deal with the issue that the hon. Gentleman raised. The Government are waiting for the judgment on the Anderson case involving a challenge to the ministerial setting of tariffs for life sentence prisoners. The claim that the administrative policy whereby the Home Secretary sets tariffs is incompatible with article 6 has given rise to much media and Opposition speculation that if the Government lose, dangerous offenders will be instantly unleashed on the public. That is not the case. The hon. Member for Beaconsfield (Mr. Grieve) has never suggested it, but others on the Opposition Benches have. Such offenders can be released only if there is a further process by which they are judged to be no longer a risk to the public. I am afraid that the fact that the House of Lords adjourned judgment and did not decide against the Government, as the Opposition intended and as foreseen by those speeches, has caused them a terrible embarrassment. Again, they intended to whip up a crime panic.

There is no choice to be made between democracy and human rights; they go hand in hand. Respect for human rights is the hallmark of democracy and of Parliament, because it shows that society rightly values each and every human being. As the Lord Chief Justice put it,

Court cases that test the balance between the individual's and the community's rights are not a reflection on a particular Government, but an inevitable feature of all modern government. There is a common pattern of individuals seeking to test the boundaries of new law. The more legislation is introduced, the more people seek to challenge it.

The Government have put their case vigorously and are right to do so. They maintain that the powers given by Parliament to the Home Secretary to fix a tariff are right. So far, the Court of Appeal has agreed. The House of Lords may agree. If the House of Lords does not, as the Home Secretary has declared, he is entitled to legislate to enshrine the power. The Opposition are trying to speculate about what may happen after that, if the matter goes to Strasbourg—a situation that will probably not arise.

Let me tell the House what I think has been happening in the course of legislation dealing with life sentences. Because both the courts and the Government are acting on the basis of the same core values, there has been a healthy process of refinement. In the case of Stafford, the Lord Chief Justice accepted what had been in doubt for some time: that there ought in certain circumstances to be, in effect, a whole-life tariff, which he called a no-minimum tariff—that is, a judge would say, XI can't set a minimum tariff for this because it is so serious a crime." That is a shift brought about by good arguments presented by the Government in court.

The Home Secretary has in turn accepted that the second part of the discretion, after he has fixed the tariff, as to whether the person is released because they are no longer a threat, should be taken away from the Executive and entirely judicialised. In truth, the litigation has narrowed the ground as the principles have been debated, analysed and refined, all within the framework of the human rights system. The debate is premature because that healthy process is still continuing. It is continuing on Anderson, on the tariff, and in that case it is right to say that the Government's position has been upheld. On the anti-terrorism measure, it is probably better to describe the process as still continuing.

When cases have gone to Strasbourg against the Government—I believe that the Government have always accommodated the decision—there is the factor of the margin of appreciation, which cannot be ignored. Fair trial rights are, it is right to say, where the margin of appreciation is at its narrowest. It is the discretion of the Home Secretary, which is simultaneously part and parcel of our political processes, which the Strasbourg court insists is the area in which the Government tend to know best and is the place where the margin of appreciation is at its widest

On Anderson, we have won in the Court of Appeal. There is no decision in the House of Lords, still less has the case got to Strasbourg. Any argument that these matters should be debated before that occurs, granted the healthy process of refinement that has been going on, is in bald terms not about subtle constitutional terms but an attempt to grab a cheap political advantage.

The hon. Member for Beaconsfield referred to what he describes as the mantra which is put on to the front of every Bill. The Joint Committee on Human Rights looks at every such declaration made by a Minister. A healthy process is set up whereby sometimes, if there are disagreements, we write to the Minister concerned. He comes back with his understanding and we write back. There have been some occasions when Ministers have been adaptable and changed tack. There have been times when we have been persuaded that we are wrong. But, there is no doubt that we represent Parliament when we become involved in these matters. There is no doubt that a healthy tripartite dialogue has been engendered between the courts, Parliament and the Executive by the Human Rights Act. They have all worked together.

The Government are to be congratulated on introducing the ECHR. They are to be congratulated when they fight their corner when faced with clashes between their political will, democratically elected as they are, and the possible rights of a citizen. The citizen is to be congratulated too on fighting his corner. That is not a weakness in the incorporation process but a strength. It is not evidence that the Government have made a mistake. It is evidence that they are mature in their understanding of democracy. If the pamphlet that has been quoted by some of my hon. Friends is evidence of the views of some Opposition Members, it does not reflect a level of maturity that is likely to be attained by the Opposition. I look forward to the further spread of a human rights culture, ranging far and wide, over the years to come. I emphasise that human rights are an enhancement of democracy and not an enemy of it.

9.33 pm

Sir Teddy Taylor (Rochford and Southend, East): There are only a few minutes left for Back-Bench Members to speak in the debate, but there is a point that should be made before we come to Front-Bench speeches. Almost everyone who has spoken in the debate has high regard for the European Court of Human Rights. As one of a small minority who voted against the Human Rights Act 1998, as it became, I make the point that if we consider the practical policies of government and those who have to do the business of government, we find that the courts do not help human rights but simply undermine the principles of democratic government. I think that the evidence is there. I regret that the Home Secretary, who has undoubtedly virtually exploded when the European court has been interfering with decision making, is not here to explain to us what happens.

The convention was passed in 1951 and made into law in Britain in 1998. The argument advanced was that it cost a great deal of money to go to the European court and it would be far better to stay in the United Kingdom. I ask Ministers seriously to consider how the court has helped with the decision-making process and in trying to manage our affairs. If Ministers were put in charge of the asylum seekers' problem, what the blazes would they do when Government policies designed to enable cases to be dealt with quickly are undermined by the massive extra appeal process that is available through the European convention?

I am someone who I hope works, as all Members do, for good race relations, but I know that the numbers and the long decision-making process undermine the situation.

For example, a constituent of mine from Turkey has been appealing in various ways for a total of nine years. Furthermore, when the European Court of Human Rights made its decision on the person whom the Home Secretary recently tried to send back to the place where they had originally applied for political asylum, how did it help the process?

I ask those who admire the European Court of Human Rights, including my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who said that its members were much better than MPs, how on earth it is possible to manage a prison while the court is saying that the system that is used to try to control, restrain and discipline long-term prisoners has to be chucked out of the window. How is that possible if there is no power or right to say that a prisoner's amount of time inside is to be increased because he is badly behaved? If somebody were put in charge of running a prison and had that right taken away on the basis of human rights, how on earth would it help them?

How does it help our democracy when, because of the convention, this Parliament is not even allowed to consider issues about which the public feel strongly and in respect of which the arguments are far from clear, such as capital and corporal punishment? Far from helping democracy, that has undermined the ability of Ministers to deal with practical problems and is making life infinitely more difficult for them. In addition, we should bear in mind that discussions are under way that will bring the powers of the convention into European law. Frankly, when that happens, even the motion, which implies that there may be a case for further consideration or discussion between the parties, would be completely irrelevant.

The issue about which we should be most worried is the extent to which people are simply switching off from democracy. They do not bother to consider what happens in the House of Commons, because our Parliament has no power in relation to so many of the things about which they care passionately or does not consider them.

If, by chance, I am right in what I am saying, the question is this: what can we do? The plain fact is that more and more powers have been going to the European courts—both the European Court of Human Rights and the European Court of Justice. We can do nothing about what has happened in terms of the European Court of Justice or the European Union, but we can do something about the convention. I genuinely wonder whether the House should ask itself what damage we would do and what benefits would come to us if we were to cancel the 1998 Act and repeal the convention. Surely, our Parliament can look after people's entitlements, rights and obligations with far more care and consideration than by leaving the issues to European courts.

When all the institutions started, we heard people say that they would safeguard freedom, democracy and liberty. We have then seen the courts step in and take more and more powers by stretching the wording of the convention and, as in some recent decisions, by quoting other conventions such as the international covenant on civil and political rights and the convention on the rights of the child, which have not even been discussed or approved by the House of Commons.

While the Government have heard many learned arguments about the merits of the European Court of Human Rights, I hope that they will ask themselves whether we could better safeguard our liberty and freedom if Parliament took back the powers. In such circumstances, if people did not like the decisions that were made, they could change them or seek to undermine the Government. Currently, the powers of Parliament are disappearing and our democracy is dying. All the powers seem to be going to courts, institutions and organisations over which the people have no control. I therefore hope that the Government, on the advice of the Home Secretary and others who see how these issues work and what the institutions are trying to do, will think seriously about getting rid of the Act that we foolishly passed and which I voted against in 1998, disengaging from the convention and looking after people's freedom and liberty as a democratic Parliament.

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